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.  if     ».-- 
THE 


LAW  OF  NATIONS; 


PRINCIPLES  OF  THE  LAW  OF  NATURE, 


APPLIED  TO 


CONDUCT  AND  AFFAIRS 


NATIONS  AND  SOTEEEIGNS. 


FROM  THE  FRENCH 

OP 

MONSIEUR  DE  VATTEL. 


«Nihil  est  onim  illi  principi  Deo  qui  omnem  hunc  mundum  regit,  quod  quidem  in  terris  fiat,  accepting 
quam  concilia  coetusque  hominum  jure  sociati,  qua  mitates  appellantur."— CICERO,  Sou.  SCIP. 


FROM  THE  NEW  EDITION, 


JOSEPH    CHITTY,    ESQ. 


BARRISTER  AT  LAW. 


WITH    ADDITIONAL    NOTES    AND    REFERENCES, 

BY  EDWAKD  D.  INGKAHAM,  ESQ. 


T.  &  J.  W.  JOHNSON,  LAW  BOOKSELLEKS, 

v    No.  197  CHESTNUT  STREET. 

'  V1853. 


Entered  according  to  Act  of  Congress,  in  the  year  1852,  by 

T.  &  J.  W.  JOHNSON, 
in  the  Clerk's  Office  of  the  District  Court  of  the  Eastern  District  of  Pennsylvania. 


PREFACE   TO  THIS  EDITION. 


THE  text  of  the  present  translation  of  Yattel  has  been  care- 
fully  compared  with  that  of  the  original  work,  in  the  first 
v>»     edition  which  appeared,  (Londres,  1758,  2  vol.  in  quarto,)  pub- 
lished at  Neuchatel;   in  that  of  Amsterdam,   (Van  Harrevelt, 
1775,  2  vol.  in  quarto,)  the  best  known  till  recently;  and  in 
that  of  M.  de  Hofmans,  (Paris,  1839,  2  vol.  in  octavo,)  the 
last  and  best  edition.     Great  care  has  been  taken  also  in  re- 
%     gard  to  the  British  decisions  cited  by  the  English  editor.     It 
^      was  discovered,  that  many  inaccuracies  existed  in  the  citations, 
^  v    particularly  in  the  names  of  the  cases  cited,  which  have  been 
corrected  by  references  to  the  original  reports  of  the  decisions ; 
and  wherever  it  appeared  that  the  notes  of  the  English  editor 
,>     required  additions  to  render  the  doctrine  advanced  in  them 
•  \    clearer,  or  more  intelligible,  such  additions  have  been  made ; 
j    care  having  been  taken  to  distinguish  the  matter  added  by 

J  enclosing  it  in  brackets.  The  editor  regrets  very  much  that 
the  size  of  the  volume — which  would  have  been  too  much  in- 
creased by  such  an  extension — did  not  permit  him  to  annex 
to  it  the  "  Bibliographic  choisie  et  systematique  du  Droit  de  la 
Nature  et  des  Gens,  et  ^u  Droit  Public,"  of  M.  de  Ho/mans, 
which  is  an  excellent  guide  in  the  choice  of  Works  upon  a 
subject  much  less  attended  to  than  js  demanded  by  its  im- 
portance. 

Philadelphia,  Sept.  29, 1852. 

iii 


ADVERTISEMENT 

TO  THE  EDITION  OF  A.  D.  1797. 


AN  undertaking  this  new  edition  of  Monsieur  De  Vattel's  trea- 
tise, it  was  not  my  intention  to  give  what  might  strictly  be 
called  a  new  translation.  To  add  the  author's  valuable  notes 
from  the  posthumous  edition,  printed  at  Neufchatel  in  1773, — 
to  correct  some  errors  I  had  observed  in  the  former  version, — 
and  occasionally  to  amend  the  language  where  doubtful  or 
obscure, — were  the  utmost  limits  of  my  original  plan.  As  I 
proceeded,  however,  my  alterations  became  more  numerous ; 
but  whether  they  will  be  acknowledged  as  amendments,  it 
must  rest  with  the  reader  to  determine.  Even  if  this  decision 
should  be  more  favourable  than  I  have  any  reason  to  expect,  I 
lay  no  claim  to  praise  for  my  humble  eiforts,  but  shall  esteem 
myself  very  fortunate  if  I  escape  the  severity  of  censure  for 
presenting  the  work  to  the  public  in  a  state  still  so  far  short 
of  perfection.  Conscious  of  its  defects,  I  declare,  with  great 
sincerity, — 

.  .  .  Vcniam  pro  laude  peto, — laudatus  abunde, 
Non  fastiditus  si  tibi,  lector,  ero. 

THE  EDITOR. 

London,  May  1,  1797. 


PKEFACE 

TO  THE  PRESENT  EDITION. 


J.  HE  merits  and  increasing  utility  of  this  admirable  work  have 
not,  as  yet,  been  sufficiently  known,  or  justly  appreciated.  It 
has  been  generally  supposed  that  it  is  only  adapted  for  the 
study  of  sovereigns  and  statesmen,  and  in  that  view  certainly 
the  author's  excellent  Preface  points  out  its  pre-eminent  im- 
portance. But  it  is  of  infinitely  more  extended  utility.  It  con- 
tains a  practical  collection  of  ethics,  principles,  and  rules  of 
conduct  to  be  observed  and  pursued,  as  well  by  private  indivi- 
duals as  by  states,  and  these  of  the  utmost  practical  importance 
to  the  well-being,  happiness,  and  ultimate  and  permanent  ad- 
vantage and  benefit  of  all  mankind ;  and,  therefore,  ought  to 
be  studied  by  every  gentleman  of  liberal  education,  and  by  youth, 
in  whom  the  best  moral  principles  should  be  inculcated.  The 
work  should  be  familiar  in  the  Universities,  and  in  every  class 
above  the  inferior  ranks  of  society.  And,  as  regards  lawyers, 
it  contains  the  clearest  rules  of  construing  private  contracts, 
and  respecting  the  Admiralty  and  Insurance  Law.  The  posi- 
tions of  the  author,  moreover,  have  been  so  sensibly  and  clearly 
supported  and  explained,  and  so  happily  illustrated  by  histo- 
rical and  other  interesting  examples,  that  the  perusal  cannot 
fail  to  entertain  as  well  as  instruct.  The  present  Editor, 
therefore,  affirms,  without  the  hazard  of  contradiction,  that 
every  one  who  has  attentively  read  this  work,  will  admit  that 
he  has  acquired  a  knowledge  of  superior  sentiments  and  more 
'important  information  than  he  ever  derived  from  any  other 
work. 

A2  V 


IV  PREFACE  TO  THE  PRESENT  EDITION. 

Many  years  have  elapsed  since  the  original  work  was  pub- 
lished, long  before  the  invaluable  decisions  of  Sir  William 
Scott,  Sir  C.  Robinson,  and  Sir  John  Nichol,  and  other  emi- 
nent Judges  in  the  Courts  of  Admiralty,  and  Prize  and  other 
Courts ;  and  the  last  edition,  upon  which  any  care  was  be- 
stowed, was  published  in  A.  D.  1797;  since  which  time,  and 
especially  during  the  last  general  war,  many  most  important 
rules  respecting  the  Law  of  Nations  were  established.  The 
object  of  the  present  Editor  has,  therefore,  been  to  collect  and 
condense,  in  numerous  notes,  the  modern  rules  and  decisions,  and 
to  fortify  the  positions  in  the  text  by  references  to  other  au- 
thors of  eminence,  and  by  which  he  hopes  that  this  edition 
will  be  found  of  more  practical  utility,  without  interfering  with 
the  text,  or  materially  increasing  its  size. 

The  Editor  had  proposed  to  form  an  Index,  so  as  to  render 
the  work  more  readily  accessible ;  but,  in  that  desire,  he  has 
been  overruled  by  the  publishers,  who  think  that  the  exceed- 
ingly full  Analytical  Table  of  Contents  following  the  Preface, 
and  naming  the  pages  where  each  position  is  to  be  found,  are 
sufficient,  without  increasing  the  bulk  of  the  work,  and,  con- 
sequently, the  expense.  The  Editor  hopes  that  the  student 
who  may  examine  his  numerous  notes  will  not  think  that  he 
has  wasted  time. 

J.  CHITTY. 

Chambers,  6,  Chancery  Lane, 
November,  1833. 


PREFACE. 


J_  HE  Law  of  Nations,  though  so  noble  and  important  a  subject,  has 
not,  hitherto,  been  treated  of  with  all  the  care  it  deserves.  The  greater 
part  of  mankind  have,  therefore,  only  a  vague,  a  very  incomplete,  and 
often  even  a  false  notion  of  it.  The  generality  of  writers,  and  even 
celebrated  authors,  almost  exclusively  confine  the  name  of  "Law  of 
Nations"  to  certain  maxims  and  treatises  recognised  among  nations,  and 
•which  the  mutual  consent  of  the  parties  has  rendered  obligatory  on 
them.  This  is  confining  within  very  narrow  bounds  a  law  so  extensive 
in  its  own  nature,  and  in  which  the  whole  human  race  are  so  intimately 
concerned ;  it  is,  at  the  same  time,  a  degradation  of  that  law,  in  conse- 
quence of  a  misconception  of  its  real  origin. 

There  certainly  exists  a  natural  law  of  nations,  since  the  obligations 
of  the  law  of  nature  are  no  less  binding  on  states,  on  men  united  in 
political  society,  than  on  individuals.  But,  to  acquire  an  exact  know- 
ledge of  that  law,  it  is  not  sufficient  to  know  what  the  law  of  nature 
prescribes  to  the  individuals  of  the  human  race.  The  application  of 
a  rule  to  various  subjects,  can  no  otherwise  be  made  than  in  a  manner 
agreeable  to  the  nature  of  each  subject.  Hence,  it  follows,  that  the 
natural  law  of  nations  is  a  particular  science,  consisting  in  a  just  and 
rational  application  of  the  law  of  nature  to  the  affairs  and  conduct  of 
nations  or  sovereigns.  All  treatises,  therefore,  in  which  the  law  of 
nations  is  blended  and  confounded  with  the  ordinary  law  of  nature,  are 
incapable  of  conveying  a  distinct  idea,  or  a  substantial  knoAvledge  of 
the  sacred  law  of  nations. 

The  Romans  often  confounded  the  law  of  nations  with  the  law  of  nature, 
giving  the  name  of  "the  law  of 'nations"  (Jus  Gentium)  to  the  law  of 
nature,  as  being  generally  acknowledged  and  adopted  by  all  civilized 
nations.*  The  definitions  given  by  the  emperor  Justinian,  of  the  law 
of  nature,  the  law  of  nations,  and  the  civil  law,  are  well  known.  "  The 
law  of  nature,"  says  he,  "  is  that  which  nature  teaches  to  all  animals"  :"f 
thus  he  defines  the  natural  law  in  its  most  extensive  sense,  not  that 
natural  law  which  is  peculiar  to  man,  and  which  is  derived  as  well  from 
his  rational  as  from  his  animal  nature.  "  The  civil  law,"  that  emperor 
adds,  "  is  that  which  each  nation  has  established  for  herself,  and  which 
peculiarly  belongs  to  each  state  or  civil  society.  And  that  law,  which  na- 

*  Neque  vero  hoc  solnm  naturS,  id  est,  jure  f  Jus  naturale  est,  quod  natura  omnia  ani- 
gentium,  <tc.  Cicero  do  Offic.  lib.  iii.  c.  5.  mtdia  docuit  Instit.  lib.  i.  tit.  2. 


Till  PREFACE. 

tural  reason  has  established  among  all  mankind,  and  which  is  equally  ob- 
served by  all  people,  is  called  the  law  of  nations,  as  being  law  which  all 
nations  follow.*  In  the  succeeding  paragraph,  the  emperor  seems  to  ap- 
proach nearer  to  the  sense  we  at  present  give  to  that  term.  "  The  law  of 
nations,"  says  he,  "is  common  to  the  whole  human  race.  The  exigencies 
and  necessities  of  mankind  have  induced  all  nations  to  lay  down  and  adopt 
certain  rules  of  right.  For  wars  have  arisen,  and  produced  captivity 
and  servitude,  which  are  contrary  to  the  law  of  nature ;  since,  by  the 
law  of  nature,  all  men  were  originally  born  free."f  But  from  what  he 
adds, — that  almost  all  kinds  of  contracts,  those  of  buying  and  selling, 
of  hire,  partnership,  trust,  and  an  infinite  number  of  others,  owe  their 
origin  to  that  law  of  nations, — it  plainly  appears  to  have  been  Justinian's 
idea,  that,  according  to  the  situations  and  circumstances  in  which  men 
were  placed,  right  reason  has  dictated  to  them  certain  maxims  of  equity, 
so  founded  on  the  nature  of  things,  that  they  have  been  universally 
acknowledged  and  adopted.  Still  this  is  nothing  more  than  the  law  of 
nature,  which  is  equally  applicable  to  all  mankind. 

The  Romans,  however,  acknowledged  a  law  whose  obligations  are 
reciprocally  binding  on  nations :  and  to  that  law  they  referred  the  right 
of  embassies.  They  had  also  their  fecial  law,  which  was  nothing  more 
than  the  law  of  nations  in  its  particular  relation  to  public  treaties,  and 
especially  to  war.  The  feciales  were  the  interpreters,  the  guardians, 
and,  in  a  manner,  the  priests  of  the  public  faith.  J 

The  moderns  are  generally  agreed  in  restricting  the  appellation  of 
"the  law  of  nations"  to  that  system  of  right  and  justice  which  ought 
to  prevail  between  nations  or  sovereign  states.  They  differ  only  in  the 
ideas  they  entertain  of  the  origin  whence  that  system  arose,  and  of  the 
foundations  upon  which  it  rests.  The  celebrated  Grotius  understands 
it  to  be  a  system  established  by  the  common  consent  of  nations :  and 
he  thus  distinguishes  it  from  the  law  of  nature:  "When  several  persons, 
at  different  times,  and  in  various  places,  maintain  the  same  thing  as 
certain,  such  coincidence  of  sentiment  must  be  attributed  to  some  gene- 
ral cause.  Now,  in  the  questions  before  us,  that  cause  must  necessarily 
be  one  or  the  other  of  these  two — either  a  just  consequence  drawn 
from  natural  principles,  or  a  universal  consent.  The  former  discovers 
to  us  the  law  of  nature,  and  the  latter  the  law  of  nations.  "§ 

That  great  man,  as  appears  from  many  passages  in  his  excellent 
work,  had  a  glimpse  of  the  truth :  but  as  he  had  the  task  of  extracting 

*  Quod  quisquo   populus  ipse  sibi  jus  con-  turali  juri   contrariae.       Jure    enira   natural! 

gtituit,  id  ipsius  proprium  civitatis  est,  voca-  omnea  homines  ab  initio    liberi  nascebantur. 

turque   jus  civile,  quasi  jus  proprium  ipsius  Id.  $  2. 

civitatis  :  quod  vero  naturalis  ratio  inter  om-  J  Feciales,  quod  fidei  publicae  inter  populos 

nes  homines  constituit,  id   apud  omnes  per-  prseerant:  nam  per  hos  fiebat  ut  justum  con- 

tcque  custoditur,  vocaturque  jus  gentium,  qua-  ciperetur  helium  (et  inde  desitum),  et  ut  foe- 

si  quo  jure  omnes  gentes  utontur.    Instil,  lib.  i.  dere  fides  pacis  constitueretur.     Ex  his  mittc- 

tit.  ii.  \  1.  bant,  antequam  conciperetur,  qui  res  repete- 

j-  Jus  autem  gentium  omni  huinnno  generi  rent :  et  per  hos  etiam  nunc  fit  foedus.     Varro 

commune  est;  nam  usu  exigente  et  humanis  de  Ling.  Lat.  lib.  iv. 

necessitatibus,   gentes  humanae  jura  quaedam  $  De  Jure  Belli  ct  Pads,  translated  by  Bar- 

sibi  constituerunt.    Bella  etenim  orta  sunt,  et  beyrac :  Preliminary  Discourse,  |  4.1. 
captivitates  secutae  et  servitutes,  qua  sunt  na- 


PKEPACE.  IX 

from  the  rude  ore,  as  it  were,  and  reducing  into  regular  shape  and 
form,  a  new  and  important  subject,  which  had  been  much  neglected 
before  his  time,  it  is  not  surprising  that,  having  his  mind  burthened 
with  an  immense  variety  of  objects,and  with  a  numberless  train  of  quo- 
tations, which  formed  a  part  of  his  plan,  he  could  not  always  acquire 
those  distinct  ideas  so  necessary  in  the  sciences.  Persuaded  that  na- 
tions, or  sovereign  powers,  are  subject  to  the  authority  of  the  law  of  na- 
ture, the  observance  of  which  he  so  frequently  recommends  to  them,  that 
learned  man,  in  fact,  acknowledged  a  natural  law  of  nations,  which  he 
somewhere  calls  the  internal  law  of  nations :  and,  perhaps,  it  will  appear 
that  the  only  difference  between  him  and  us  lies  in  the  terms.  But  we 
have  already  observed,  that,  in  order  to  form  this  natural  law  of  na- 
tions, it  is  not  sufficient  simply  to  apply  to  nations  what  the  law  of  na- 
ture decides  with  respect  to  individuals.  And,  besides,  Grotius,  by  his 
very  distinction,  and  by  exclusively  appropriating  the  name  of  "the 
law  of  nations"  to  those  maxims  which  have  been  established  by  the 
common  consent  of  mankind,  seems  to  intimate  that  sovereigns,  in 
their  transactions  with  each  other,  cannot  insist  on  the  observance  of  any 
but  those  last-mentioned  maxims,  reserving  the  internal  law  for  the 
direction  of  their  own  consciences.  If,  setting  out  with  the  idea  that 
political  societies  or  nations  live,  with  respect  to  each  other,  in  a 
reciprocal  independence,  in  the  state  of  nature,  and  that,  as  political 
bodies,  they  are  subject  to  the  natural  law,  Grotius  had,  moreover,  con- 
sidered that  the  law  must  be  applied  to  these  new  subjects  in  a  manner 
suitable  to  their  nature,  that  judicious  author  would  easily  have  disco- 
vered that  the  natural  law  of  nations  is  a  particular  science;  that  it 
produces  between  nations  even  an  external  obligation  wholly  indepen- 
dent of  their  will ;  and  that  the  common  consent  of  mankind  is  only 
the  foundation  and  source  of  a  particular  kind  of  law,  called  the  Ar- 
bitrary Law  of  Nations. 

Hobbes,  in  whose  work  we  discover  the  hand  of  a  master,  notwithstand- 
ing his  paradoxes  and  detestable  maxims, — Hobbes  was,  I  believe,  the 
first  who  gave  a  distinct,  though  imperfect  idea,  of  the  law  of  nations. 
He  divides  the  law  of  nature  into  that  of  man,  and  that  of  states:  and 
the  latter  is,  according  to  him,  what  we  usually  call  the  law  of  nations. 
"  The  maxims,"  he  adds,  "  of  each  of  these  laws  are  precisely  the  same: 
but  as  states,  once  established,  assume  personal  properties,  that  which 
is  termed  the  natural  law,  when  we  speak  of  the  duties  of  individuals, 
is  called  the  law  of  nations  when  applied  to  whole  nations  or  states."* 
This  author  has  well  observed,  that  the  law  of  nations  is  the  law  of  na- 
ture applied  to  states  or  nations.  But  we  shall  see,  in  the  course  of  this 
work,  that  he  was  mistaken  in  the  idea  that  the  law  of  nature  does  not 
suffer  any  necessary  change  in  that  application,  an  idea,  from  which 

*  Rursus  (lex  )  naturalis  dividi  potest  in  prietates  hominum  personales,  lex  quam,  lo- 

naturalem  hominum,  quae  sola  obtinuit  dici  quentes  de  hominum  singulorum  officio,  wa- 

Lex  Nature,  et  naturalem  civitatum,  quse  dici  turalem  dicimus,  applicata  totis  civitatibus,  na- 

p'otest  Lex  Gentium,  vulgo  autem  Jus  Gentium  tionibus,  sive  gentibus,  vocatur  Jus  Gentium, 

appellatur.     Prsecepta  utriusque  eadem  sunt:  De  Give,  c.  xiv.  §  4. 
sed  quia  civitates  semel  institute  induunt  pro- 


X  PREFACE. 

he  concluded  that  the  maxims  of  the  law  of  nature  and  those  of  the 
law  of  nations  are  precisely  the  same. 

Puffendorf  declares  that  he  unreservedly  subscribes  to  this  opinion 
espoused  by  Hobbes.*  He  has  not,  therefore,  separately  treated  of  the 
law  of  nations,  but  has  everywhere  blended  it  with  the  law  of  nature, 
properly  so  called. 

Barbeyrac,  who  performed  the  office  of  translator  and  commentator 
to  Grotius  and  Puffendorf,  has  approached  much  nearer  to  the  true  idea 
of  the  law  of  nations.  Though  the  work  is  in  everybody's  hands,  I 
shall  here,  for  the  reader's  convenience,  transcribe  one  of  that  learned 
translator's  notes  on  Grotius's  Law  of  War  and  Peace.f  "  I  acknow- 
ledge," says  he,  "that  there  are  laws  common  to  all  nations — things 
which  all  nations  ought  to  practise  towards  each  other :  and  if  people 
choose  to  call  these  the  law  of  nations,  they  may  do  so  with  great  pro- 
priety. But,  setting  aside  the  consideration  that  the  consent  of  man- 
kind is  not  the  basis  of  the  obligation  by  which  we  are  bound  to  observe 
those  laws,  and  that  it  cannot  even  possibly  take  place  in  this  instance — 
the  principles  and  the  rules  of  such  a  law  are,  in  fact,  the  same  as  these 
of  the  law  of  nature,  properly  so  called ;  the  only  difference  consisting 
in  the  mode  of  their  application,  which  may  be  somewhat  varied,  on 
account  of  the  difference  that  sometimes  happens  in  the  manner  in  which 
nations  settle  their  affairs  with  each  other." 

It  did  not  escape  the  notice  of  the  author  we  have  just  quoted,  that 
the  rules  and  decisions  of  the  law  of  nature  cannot  be  purely  and  simply 
applied  to  sovereign  states,  and  that  they  must  necessarily  undergo 
some  modifications  in  order  to  accommodate  them  to  the  nature  of  the 
new  subjects  to  which  they  are  applied.  But  it  does  not  appear  that 
he  discovered  the  full  extent  of  this  idea,  since  he  seems  not  to  approve 
of  the  mode  of  treating  the  law  of  nations  separately  from  the  law  of 
nature  as  relating  to  individuals.  He.  only  commends  Budseus's  method, 
saying,  "  It  was  right  in  that  author  to  point  out,J  after  each  article 
of  the  law  of  nature,  the  application  which  may  be  made  of  it  to  nations 
in  their  mutual  relations  to  each  other,  so  far,  at  least,  as  his  plan  per- 
mitted or  required  that  he  should  do  this."§  Here  Barbeyrac  made  one 
step,  at  least,  in  the  right  track :  but  it  required  more  profound  reflec- 
tion, and  more  extensive  views,  in  order  to  conceive  the  idea  of  a  sys- 
tem of  natural  law  of  nations,  which  should  claim  the  obedience  of 
states  and  sovereigns,  to  perceive  the  utility  of  such  a  work,  and  espe- 
cially to  be  the  first  to  execute  it. 

This  glory  was  reserved  for  the  Baron  de  Wolf.  That  great  philoso- 
pher saw  that  the  law  of  nature  could  not,  with  such  modifications  as 
the  nature  of  the  subjects  required,  and  with  sufficient  precision,  clear- 
ness, and  solidity,  be  applied  to  incorporated  nations,  or  states,  without 
the  assistance  of  those  general  principles  and  leading  ideas  by  which 

*  Puffendorf  s  Law  of  Nature  and  Nations,         $  Note  2  on  Puffendorf 's   Law  of  Nature 

book  ii.  chap.  iii.  $  23.  and  Nations,  book  ii.  chap.  3,  $  23.     I  have 

f  Book  i.  chap.  i.  £  14,  note  3.  not    been   able   to   procure    Budaeus's   work, 

j  In  his  Elementa  Philos.  Pract.  from  which  I  suspect  that  Barbeyrac  derived 

this  idea  of  the  Law  of  Nations. 


PREFACE.  XI 

the  application  is  to  be  directed ;  that  it  is  by  those  principles  alone  we 
are  enabled  evidently  to  demonstrate  that  the  decisions  of  the  law  of 
nature,  respecting  individuals,  must,  pursuant  to  the  intentions  of  that 
very  law,  be  changed  and  modified  in  their  application  to  states  and 
political  societies,  and  thus  to  form  a  natural  and  necessary  law  of  na- 
tions :*  whence  he  concluded,  that  it  was  proper  to  form  a  distinct 
system  of  the  law  of  nations,  a  task  which  he  has  happily  executed. 
But  it  is  just  that  we  should  hear  what  Wolf  himself  says  in  his  Pre- 
face. 

" Nations, "f  says  he,  "do  not,  in  their  mutual  relations  to  each 
other,  acknowledge  any  other  law  than  that  which  Nature  herself  has 
established.  Perhaps,  therefore,  it  may  appear  superfluous  to  give  a 
treatise  on  the  law  of  nations,  as  distinct  from  the  law  of  nature.  But 
tho&e  who  entertain  this  idea  have  not  sufficiently  studied  the  subject. 
Nations,  it  is  true,  can  only  be  considered  as  so  many  individual  per- 
sons living  together  in  the  state  of  nature;  and,  for  that  reason,  we 
must  apply  to  them  all  the  duties  and  rights  which  nature  prescribes 
and  attributes  to  men  in  general,  as  being  naturally  born  free,  and  bound 
to  each  other  by  no  ties  but  those  of  nature  alone.  The  law  which 
arises  from  this  application,  and  the  obligations  resulting  from  it,  pro- 
ceed from  that  immutable  law  founded  on  the  nature  of  man ;  and  thus 
the  law  of  nations  certainly  belongs  to  the  law  of  nature :  it  is,  there- 
fore, on  account  of  its  origin,  called  the  natural,  and,  by  reason  of  its 
obligatory  force,  the  necessary  law  of  nations.  That  law  is  common  to 
all  nations ;  and  if  any  one  of  them  does  not  respect  it  in  her  actions, 
she  violates  the  common  rights  of  all  the  others. 

"But  nations  or  sovereign  states  being  moral  persons,  and  the  sub- 
jects of  the  obligations  and  rights  resulting,  in  virtue  of  the  law  of  na- 
ture, from  the  act  of  association  which  has  formed  the  political  body, 
the  nature  and  essence  of  these  moral  persons  necessarily  differ,  in  many 
respects,  from  the  nature  and  essence  of  the  physical  individuals,  or 
men,  of  whom  they  are  composed.  When,  therefore,  we  would  apply 
to  nations  the  duties  which  the  law  of  nature  prescribes  to  individual 
man,  and  the  rights  it  confers  on  him  in  order  to  enable  him  to  fulfil  his 
duties,  since  those  rights  and  those  duties  can  be  no  other  than  what 
are  consistent  with  the  nature  of  their  subjects,  they  must,  in  their  ap- 
plication, necessarily  undergo  a  change  suitable  to  the  new  subjects 
to  which  they  are  applied.  Thus,  we  see  that  the  law  of  nations  does 

*  If  it  were  not  more  advisable  for  the  founded  on  the  nature  of  man,  so  the  natural 
sake  of  brevity,  of  avoiding  repetitions,  and  law  of  nations  is  the  natural  law  of  political 
taking  advantage  of  the  ideas  already  formed  societies,  and  founded  on  the  nature  of 
and  established  in  the  minds  of  men, — if,  those  societies.  But  as  the  result  of  either 
for  all  these  reasons,  it  were  not  more  conve-  mode  is  ultimately  the  same,  I  have,  in  prefer- 
ment to  presuppose,  in  this  instance,  a  know-  ence,  adopted  the  more  compendious  one. 
ledge  of  the  ordinary  law  of  nature,  and  on  As  the  law  of  nature  has  already  been  treated 
that  ground  to  undertake  the  task  of  applying  of  in  an  ample  and  satisfactory  manner,  the 
it, to  sovereign  states, — it  would,  instead  of  shortest  way  is  simply  to  make  a  rational 
speaking  of  such  application,  be  more  accurate  application  of  it  to  nations. 
to  say,  that,  as  the  law  of  nature,  properly  so  t  A  nation  here  means  a  sovereign  state, 
called,  is  the  natural  law  of  individuals  and  an  independent  political  society. 


Xii  PREFACE. 

not,  in  every  particular,  remain  the  same  as  the  law  of  nature,  regu- 
lating the  actions  of  individuals.  Why  may  it  not,  therefore,  be  sepa- 
rately treated  of,  as  a  law  peculiar  to  nations?" 

Being  myself  convinced  of  the  utility  of  such  a  work,  I  impatiently 
waited  for  Monsieur  Wolf's  production,  and,  as  soon  as  it  appeared, 
formed  the  design  of  facilitating,  for  the  advantage  of  a  greater  number 
of  readers,  the  knowledge  of  the  luminous  ideas  which  it  contains.  The 
treatise  of  the  philosopher  of  Hall  on  the  law  of  nations  is  dependent  on 
all  those  of  the  same  author  on  philosophy  and  the  law  of  nature.  In 
order  to  read  and  understand  it,  it  is  necessary  to  have  previously  stu- 
died sixteen  or  seventeen  quarto  volumes  which  precede  it.  Besides,  it 
is  written  in  the  manner  and  even  in  the  formal  method  of  geometrical 
works.  These  circumstances  present  obstacles  which  render  it  nearly 
useless  to  those  very  persons  in  whom  the  knowledge  and  taste  of  the  true 
principles  of  the  law  of  nations  are  most  important  and  most  desirable. 
At  first,  I  thought  that  I  should  have  had  nothing  farther  to  do  than 
to  detach  this  treatise  from  the  entire  system,  by  rendering  it  indepen- 
dent of  every  thing  Monsieur  Wolf  had  said  before,  and  to  give  it  a  new 
form,  more  agreeable,  and  better  calculated  to  insure  it  a  reception  in 
the  polite  world.  With  that  view,  I  made  some  attempts;  but  I  soon 
found,  that  if  I  indulged  the  expectation  of  procuring  readers  among 
that  class  of  persons  for  whom  I  intended  to  write,  and  of  rendering  my 
efforts  beneficial  to  mankind,  it  was  necessary  that  I  should  form  a  very 
different  work  from  that  which  lay  before  me,  and  undertake  to  furnish 
an  original  production.  The  method  followed  by  Monsieur  Wolf  has 
had  the  effect  of  rendering  his  work  dry,  and  in  many  respects  incom- 
plete. The  different  subjects  are  scattered  through  it  in  a  manner  that 
is  extremely  fatiguing  to  the  attention :  and,  as  the  author  had,  in  his 
"Law  of  Nature,"  treated  of  universal  public  law,  he  frequently  con- 
tents himself  with  a  bare  reference  to  his  former  production,  when,  in 
handling  the  law  of  nations,  he  speaks  of  the  duties  of  a  nation 
towards  herself. 

From  Monsieur  Wolf's  treatise,  therefore,  I  have  only  borrowed 
whatever  appeared  most  worthy  of  attention,  especially  the  definitions 
and  general  principles ;  but  I  have  been  careful  in  selecting  what  I 
drew  from  that  source,  and  have  accommodated  to  my  own  plan  the  ma- 
terials with  which  he  furnished  me.  Those  who  have  read  Monsieur 
Wolf's  treatises  on  the  law  of  nature  and  the  law  of  nations,  will  see 
what  advantage  I  have  made  of  them.  Had  I  everywhere  pointed  out 
what  I  have  borrowed,  my  pages  would  be  crowded  with  quotations 
equally  useless  and  disagreeable  to  the  reader.  It  is  better  to  acknow- 
ledge here,  once  for  all,  the  obligations  I  am  under  to  that  great  master. 
Although  my  work  be  very  different  from  his,  (as  will  appear  to  those 
who  are  willing  to  take  the  trouble  of  making  the  comparison,)  I  confess 
that  I  should  never  have  had  the  courage  to  launch  into  so  extensive 
a  field,  if  the  celebrated  philosopher  of  Hall  had  not  preceded  my  steps, 
and  held  forth  a  torch  to  guide  me  on  my  way. 

Sometimes,  however,  I  have  ventured  to  deviate  from  the  path  which 
he  had  pointed  out,  and  adopted  sentiments  opposite  to  his.  I  will 


PREFACE.  XlU 

here  quote  a  few  instances.  Monsieur  Wolf,  influenced,  perhaps,  by 
the  example  of  numerous  other  writers,  has  devoted  several  sections* 
to  the  express  purpose  of  treating  of  the  nature  of  patrimonial  kingdoms, 
without  rejecting  or  rectifying  that  idea  so  degrading  to  human  kind. 
I  do  not  even  admit  of  such  a  denomination,  which  I  think  equally 
shocking,  improper,  and  dangerous,  both  in  its  effects,  and  in  the  im- 
pressions it  may  give  to  sovereigns :  and  in  this,  I  flatter  myself  I  shall 
obtain  the  suffrage  of  every  man  who  possesses  the  smallest  spark  of 
reason  and  sentiment,  in  short,  of  every  true  citizen. 

Monsieur  Wolf  determines  (Jus  Gent.  §  878)  that  it  is  naturally  law- 
ful to  make  use  of  poisoned  weapons  in  war.  I  am  shocked  at  such  a 
decision,  and  sorry  to  find  it  in  the  work  of  so  great  a  man.  Happily 
for  the  human  race,  it  is  not  difficult  to  prove  the  contrary,  even  from 
Monsieur  Wolf's  own  principles.  What  I  have  said  on  this  subject  may 
oe  seen  in  Book  III.  §  156. 

In  the  very  outset  of  my  work,  it  will  be  found  that  I  differ  entirely 
from  Monsieur  Wolf  in  the  manner  of  establishing  the  foundations  of 
that  species  of  law  of  nations  which  we  call  voluntary.  Monsieur  Wolf 
deduces  it  from  the  idea  of  a  great  republic  (civitatis  maximce)  instituted 
by  nature  herself,  and  of  which  all  nations  of  the  world  are  members. 
According  to  him,  the  voluntary  law  of  nations  is,  as  it  were,  the  civil 
law  of  that  great  republic.  This  idea  does  not  satisfy  me ;  nor  do  I 
think  the  fiction  of  such  a  republic  either  admissible  in  itself,  or  capa- 
ble of  affording  sufficiently  solid  grounds  on  which  to  build  the  rules  of 
the  universal  law  of  nations,  which  shall  necessarily  claim  the  obedient 
acquiescence  of  sovereign  states.  I  acknowledge  no  other  natural  so- 
ciety between  nations  than  that  which  nature  has  established  between 
mankind  in  general.  It  is  essential  to  every  civil  society  (civitati)  that 
each  member  have  resigned  a  part  of  his  right  to  the  body  of  the  society, 
and  that  there  exist  in  it  an  authority  capable  of  commanding  all  the 
members,  of  giving  them  laws,  and  of  compelling  those  who  should  re- 
fuse to  obey.  Nothing  of  this  kind  can  be  conceived  or  supposed  to 
subsist  between  nations.  Each  sovereign  state  claims,  and  actually  pos- 
sesses an  absolute  independence  on  all  the  others.  They  are  all,  accord- 
ing to  Monsieur  Wolf  himself,  to  be  considered  as  so  many  individuals 
who  live  together  in  the  state  of  nature,  and  who  acknowledge  no  other 
laws  but  those  of  nature,  or  of  her  Great  Author.  Now,  although 
nature  has  indeed  established  a  general  society  between  mankind, 
by  creating  them  subject  to  such  wants  as  render  the  assistance  of  their 
fellow  creatures  indispensably  necessary  to  enable  them  to  live  in  a 
manner  suitable  to  men,  yet  she  has  not  imposed  on  them  any  parti- 
cular obligation  to  unite  in  civil  society,  properly  so  called :  and  if  they 
all  obeyed  the  injunctions  of  that  good  parent,  their  subjection  to  the 
restraints  of  civil  society  would  be  unnecessary.  It  is  tfue,  that  as 
there  does  not  exist  in  mankind  a  disposition  voluntarily  to  observe 
towards  each  other  the  rules  of  the  law  of  nature,  they  have  had  re- 
course to  a  political  association,  as  the  only  adequate  remedy  against 
t£e  depravity  of  the  majority — the  only  means  of  securing  the  condition 

*  In  the  Vlllth  part  of  his  Law  of  Nature,  and  in  his  Law  of  Nations. 
B 


XIV  PREFACE. 

of  the  good,  and  repressing  the  wicked :  and  the  law  of  nature  itself 
approves  of  this  establishment.  But  it  is  easy  to  perceive  that  the  civic 
association  is  very  far  from  being  equally  necessary  between  nations, 
as  it  was  between  individuals.  We  cannot,  therefore,  say,  that  nature 
equally  recommends  it,  much  less  that  she  has  prescribed  it.  Indivi- 
duals are  so  constituted,  and  are  capable  of  doing  so  little  by  themselves, 
that  they  can  scarcely  subsist  without  the  aid  and  the  laws  of  civil  society 
But,  as  soon  as  a  considerable  number  of  ihem  have  united  under  the 
same  government,  they  become  able  to  supply  most  of  their  wants ;  and 
the  assistance  of  other  political  societies  is  not  so  necessary  to  them  as 
that  of  individuals  is  to  an  individual.  These  societies  have  still,  it  is 
true,  powerful  motives  for  carrying  on  a  communication  and  commerce 
with  each  other ;  and  it  is  even  their  duty  to  do  it ;  since  no  man  can, 
without  good  reasons,  refuse  assistance  to  another  man.  But  the  law 
of  nature  may  suffice  to  regulate  this  commerce,  and  this  correspondence. 
States  conduct  themselves  in  a  different  manner  from  individuals.  It 
is  not  usually  the  caprice  or  blind  impetuosity  of  a  single  person  that 
forms  the  resolutions  and  determines  the  measures  of  the  public :  they 
are  carried  on  with  more  deliberation  and  circumspection :  and,  on  dif- 
ficult or  important  occasions,  arrangements  are  made  and  regulations 
established  by  means  of  treaties.  To  this  we  may  add,  that  independ- 
ence is  even  necessary  to  each  state,  in  order  to  enable  her  properly 
to  discharge  the  duties  she  owes  to  herself  and  to  her  citizens,  and  to 
govern  herself  in  the  manner  best  suited  to  her  circumstances.  It  is, 
therefore,  sufficient  (as  I  have  already  said)  that  nations  should  conform 
to  what  is  required  of  them  by  the  natural  and  general  society  esta- 
lished  between  all  mankind. 

But,  says  Monsieur  Wolf,  a  rigid  adherence  to  the  law  of  nature 
cannot  always  prevail  in  that  commerce  and  society  of  nations  ;  it  must 
undergo  various  modifications,  which  can  only  be  deduced  from  this 
idea  of  a  kind  of  great  republic  of  nations,  whose  laws,  dictated  by 
sound  reason,  and  founded  on  necessity,  shall  regulate  the  alterations 
to  be  made  in  the  natural  and  necessary  law  of  nations,  as  the  civil  laws 
of  a  particular  state  determine  what  modifications  shall  take  place  in 
the  natural  law  of  individuals.  I  do  not  perceive  the  necessity  of  this 
consequence ;  and  I  flatter  myself  that  I  shall,  in  the  course  of  this 
work,  be  able  to  prove,  that  all  the  modifications,  all  the  restrictions, — 
in  a  word,  all  the  alterations  which  the  rigour  of  the  natural  law  must 
be  made  to  undergo  in  the  affairs  of  nations,  and  from  which  the  volun- 
tary law  of  nations  is  formed, — to  prove,  I  say,  that  all  these  alterations 
are  deducible  from  the  natural  liberty  of  nations,  from  the  attention  due 
to  their  common  safety,  from  the  nature  of  their  mutual  correspondence, 
their  reciprocal  duties,  and  the  distinctions  of  their  various  rights,  in- 
ternal and- external,  perfect  and  imperfect, — by  a  mode  of  reasoning 
nearly  similar  to  that  which  Monsieur  Wolf  has  pursued,  with  respect 
to  individuals,  in  his  treatise  on  the  law  of  nature. 

In  that  treatise  it  is  made  to  appear  that  the  rules  which,  in  conse- 
quence of  the  natural  liberty  of  mankind,  must  be  admitted  in  ques- 
tions of  external  right,  do  not  cancel  the  obligation  which  the  internal 
right  imposes  on  the  conscience  of  each  individual.  It  is  easy  to  apply 


PREFACE.  XT 

this  doctrine  to  nations,  and,  by  carefully  drawing  the  line  of  distinc- 
tion between  the  internal  and  external  right — between  the  necessary 
and  the  voluntary  law  of  nations — to  teach  them  not  to  indulge  them- 
selves in  the  commission  of  every  act  which  they  may  do  with  impunity, 
unless  it  be  approved  by  the  immutable  laws  of  justice  and  the  voice 
of  conscience. 

Since  nations,  in  their  transactions  with  each  other,  are  equally  bound 
to  admit  those  exceptions  to,  and  those  modifications  of,  the  rigour  of 
the  necessary  law,  whether  they  be  deduced  from  the  idea  of  a  great 
republic  of  which  all  nations  are  supposed  to  be  the  members,  or  derived 
from  the  source  from  whence  I  propose  to  draw  them, — there  can  be  no 
reason  why  the  system  which  thence  results  should  not  be  called  the 
Voluntary  Law  of  nations,  in  contradistinction  to  the  necessary,  inter- 
nal, and  consciential  law.  Names  are  of  very  little  consequence :  but 
it  is  of  considerable  importance  carefully  to  distinguish  these  two  kinds 
of  law,  in  order  that  we  may  never  confound  what  is  just  and  good  in 
itself,  with  what  is  only  tolerated  through  necessity. 

The  necessary  and  the  voluntary  laws  of  nations  are  therefore  both 
established  by  nature,  but  each  in  a  different  manner :  the  former,  as  a 
sacred  law  which  nations  and  sovereigns  are  bound  to  respect  and  follow 
in  all  their  actions ;  the  latter,  as  a  rule  which  the  general  welfare  and 
safety  oblige  them  to  admit  in  their  transactions  with  each  other.  The 
necessary  law  immediately  proceeds  from  nature ;  and  that  common  mo- 
ther of  mankind  recommends  the  observance  of  the  voluntary  law  of 
nations,  in  consideration  of  the  state  in  which  nations  stand  with  respect 
to  each  other,  and  for  the  advantage  of  their  affairs.  This  double  law, 
founded  on  certain  and  invariable  principles,  is  susceptible  of  demon- 
stration, and  will  constitute  the  principal  subject  of  this  work. 

There  is  another  kind  of  law  of  nations,  which  authors  call  arbi- 
trary, because  it  proceeds  from  the  will  or  consent  of  nations.  States, 
as  well  as  individuals,  may  acquire  rights  and  contract  obligations,  by 
express  engagements,  by  compact  and  treaties  ;  hence  results  a  conven- 
tional law  of  nations,  peculiar  to  the  contracting  powers.  Nations  may 
also  bind  themselves  by  their  tacit  consent :  upon  this  ground  rest  all 
those  regulations  which  custom  has  introduced  between  different  states, 
and  which  constitute  the  usage  of  nations,  or  the  law  of  nations  founded 
on  custom.  It  is  evident  that  this  law  cannot  impose  any  obligation 
except  on  those  particular  nations  who  have,  by  long  use,  given  their 
sanction  to  its  maxims  :  it  is  a  peculiar  law,  and  limited  in  its  operations, 
as  1;he  conventional  law ;  both  the  one  and  the  other  derive  all  tb.eir  obli- 
gatory force  from  that  maxim  of  the  natural  law  which  makes  it  the  duty 
of  nations  to  fulfil  their  engagements,  whether  express  or  tacit.  The  same 
maxim  ought  to  regulate  the  conduct  of  states  with  regard  to  the  trea- 
ties they  conclude  and  the  customs  they  adopt.  I  must  content  myself 
with  simply  laying  down  the  general  rules  and  principles  which  the  law 
of  nature  furnishes  for  the  direction  of  sovereigns  in  this  respect.  A 
particular  detail  of  the  various  treaties  and  customs  of  different  states 
belongs  to  history,  and  not  to  a  systematic  treatise  on  the  law  of  nations. 

Such  a  treatise  ought,  as  we  have  already  observed,  principally  to 
consist  in  a  judicious  and  rational  application  of  the  principles  of  the 


Xvi  PREFACE. 

law  of  nature  to  the  affairs  and  conduct  of  nations  and  sovereigns 
The  study  of  the  law  of  nations  supposes  therefore  a  previous  knowledge 
of  the  ordinary  law  of  nature ;  and,  in  fact,  I  proceed  on  the  supposition 
that  iny  readers  are  already,  to  a  certain  degree  at  least,  possessed  of 
that  knowledge.  Nevertheless,  as  it  is  not  agreeable  to  readers  in  ge- 
neral to  be  obliged  to  recur  to  other  authorities  for  proofs  of  what  an 
author  advances,  I  have  taken  care  to  establish,  in  a  few  words,  the 
most  important  of  those  principles  of  the  law  of  nature  which  I  intend 
to  apply  to  nations.  But  I  have  not  always  thought  it  necessary  to 
trace  them  to  their  primary  foundations  for  the  purpose  of  demonstra- 
tion, but  have  sometimes  contented  myself  with  supporting  them  by 
common  truths  which  are  acknowledged  by  every  candid  reader,  without 
carrying  the  analysis  any  farther.  It  is  sufficient  for  me  to  persuade, 
and  for  this  purpose  to  advance  nothing  as  a  principle  that  will  not 
readily  be  admitted  by  every  sensible  man. 

The  law  of  nations  is  the  law  of  sovereigns.  It  is  principally  for  them, 
and  for  their  ministers,  that  it  ought  to  be  written.  All  mankind  are 
indeed  interested  in  it ;  and,  in  a  free  country,  the  study  of  its  maxims 
is  a  proper  employment  for  every  citizen ;  but  it  would  be  of  little  con- 
sequence to  impart  the  knowledge  of  it  only  to  private  individuals, 
who  are  not  called  to  the  councils  of  nations,  and  who  have  no  influence 
in  directing  the  public  measures.  If  the  conductors  of  states,  if  all 
those  who  are  employed  in  public  affairs,  condescended  to  apply  seri- 
ously to  the  study  of  a  science  which  ought  to  be  their  law,  and,  as  it 
were,  the  compass  by  which  to  steer  their  course,  what  happy  effects 
might  we  not  expect  from  a  good  treatise  on  the  law  of  nations  !  We 
every  day  feel  the  advantages  of  a  good  body  of  laws  in  civil  society : — 
the  law  of  nations  is,  in  point  of  importance,  as  much  superior  to  the 
civil  law,  as  the  proceedings  of  nations  and  sovereigns  are  more  mo- 
mentous in  their  consequences  than  those  of  private  persons. 

But  fatal  experience  too  plainly  proves  how  little  regard  those  who 
are  at  the  head  of  affairs  pay  to  the  dictates  of  justice,  in  conjunctures 
where  they  hope  to  find  their  advantage.  Satisfied  with  bestowing  their 
attention  on  a  system  of  politics  which  is  often  false,  since  often  unjust, 
the  generality  of  them  think  they  have  done  enough  when  they  have 
thoroughly  studied  that.  Nevertheless,  we  may  truly  apply  to  states  a 
maxim  which  has  long  been  acknowledged  as  true  with  respect  to  indi- 
viduals,— that  the  best  and  safest  policy  is  that  which  is  founded  on 
virtue.  Cicero,  as  great  a  master  in  the  art  of  government  as  in  elo- 
quence and  philosophy,  does  not  content  himself  with  rejecting  the  vul- 
gar maxim,  that  "a  state  cannot  be  happily  governed  without  commit- 
ting injustice  ;"  he  even  proceeds  so  far  as  to  lay  down  the  very  reverse 
of  the  proposition  as  an  invariable  truth,  and  maintains,  that  "  without 
a  strict  attention  to  the  most  rigid  justice,  public  affairs  cannot  be  ad- 
vantageously administered."* 

Providence  occasionally  bestows  on  the  world  kings  and  ministers 
whose  minds  are  impressed  with  this  great  trlith.  Let  us  not  renounce 

*  Nihil  est  quod  adhuc  de  republic^  putem  injuril  non  posse  ;  sed  hoc  verissimnm,  sine 
dictum,  et  quo  possim  longius  progrcdi,  nisi  sit  snmma  justitia  rempublicam  regi  non  posse, 
confirmatum,  non  modo  falsum  esse  istud,  sine  Cicero,  Fragment  ex  lib.  de  Republica. 


PREFACE.  XV11 


the  pleasing  hope  that  the  number  of  those  "wise  conductors  of  nations 
will  one  day  be  multiplied ;  and  in  the  interim  let  us,  each  in  his  own 
sphere,  exert  our  best  efforts  to  accelerate  the  happy  period. 

It  is  principally  with  a  view  of  rendering  my  work  palatable  to  those 
by  whom  it  is  of  the  most  importance  that  it  should  be  read  and  relished, 
that  I  have  sometimes  joined  examples  to  the  maxims  I  advance :  and 
in  that  idea  I  have  been  confirmed  by  the  approbation  of  one  of  those 
ministers  who  are  the  enlightened  friends  of  the  human  race,  and  who 
alone  ought  to  be  admitted  into  the  councils  of  kings.  But  I  have  been 
sparing  in  the  use  of  such  embellishments.  Without  ever  aiming  at  a 
vain  parade  of  erudition,  I  only  sought  to  afford  an  occasional  relaxation 
to  the  reader's  mind,  or  to  render  the  doctrine  more  impressive  by  an 
example,  and  sometimes  to  show  that  the  practice  of  nations  is  conform- 
able to  the  principles  laid  down :  and,  whenever  I  found  a  convenient 
opportunity,  I  have,  above  all  things,  endeavoured  to  inspire  a  love  of 
virtue,  by  snowing,  from  some  striking  passage  of  history,  how  amiable 
it  is,  how  worthy  of  our  homage  in  some  truly  great  men,  and  even  pro- 
ductive of  solid  advantage.  I  have  quoted  the  chief  part  of  my  exam- 
ples from  modern  history,  as  well  because  these  are  more  interesting, 
as  to  avoid  a  repetition  of  those  which  have  been  already  accumulated 
by  Grotius,  Puffendorf,  and  their  commentators. 

As  to  the  rest,  I  have,  both  in  these  examples  and  in  my  reasonings, 
studiously  endeavoured  to  avoid  giving  offence ;  it  being  my  intention 
religiously  to  observe  the  respect  due  to  nations  and  sovereign  powers : 
but  I  have  made  it  a  still  more  sacred  rule  to  respect  the  truth,  and 
the  interests  of  the  human  race.  If  among  the  base  flatterers  of  despotic 
power,  my  principles  meet  with  opponents,  I  shall  have  on  my  side  the 
virtuous  man,  the  friend  of  the  laws,  the  man  of  probity,  and  the  true 
citizen. 

I  should  prefer  the  alternative  of  total  silence,  were  I  not  at  liberty 
in  my  writings  to  obey  the  dictates  of  my  conscience.  But  my  pen  lies 
under  no  restraint,  and  I  am  incapable  of  prostituting  it  to  flattery.  I 
was  born  in  a  country  of  which  liberty  is  the  soul,  the  treasure,  and  the 
fundamental  law ;  and  my  birth  qualifies  me  to  be  the  friend  of  all 
nations.  These  favourable  circumstances  have  encouraged  me  in  the 
attempt  to  render  myself  useful  to  mankind  by  this  work.  I  felt  con- 
scious of  my  deficiency  in  knowledge  and  abilities :  I  saw  that  I  was 
undertaking  an  arduous  task ;  but  I  shall  rest  satisfied  if  that  class  of 
readers  whose  opinions  are  entitled  to  respect,  discover  in  my  labours 
the  traces  of  the  honest  man  and  the  good  citizen. 


B2 


CONTENTS 


PRELIMINARIES. 

Idea  and  General  Principles  of  the  Law  of  Nations. 

Sect.  Page 

1  WHAT  is  meant  by  a  nation  or  state              .        .->;-i-    >,.  •  ^            .  jv 

2  It  is  a  moral  person         ......  ib. 

3  Definition  of  the  law  of  nations           .              .              .              .              .  ib. 

4  In  what  light  nations  or  states  are  to  be  considered           .             .  Ivi 

5  To  what  laws  nations  are  subject       .             .             .             .             .  ib. 

6  In  what  the  law  of  nations  originally  consists      '.""          .             .  ib. 

7  Definition  of  the  necessary  law  of  nations       .            ..     .        .'            .  Iviii 

8  It  is  immutable                .             .             .             .             .  ib. 

9  Nations  can  make  no  change  in  it,  nor  dispense  with  the  obligations 

arising  from  it              .             .             .             .             ^ '" '        .  ib. 

10  Society  established  by  nature  between  all  mankind     .             .             .  lix 

11  And  between  all  nations  ......  Ix 

12  The  object  of  this  society  of  nations                .             .             .             .  bd 

13  General  obligation  imposed  by  it              .             .    '                      .  ib. 

14  Explanation  of  this  observation           .              .              .              .              .  ib. 

15  The  second  general  law  is  the  liberty  and  independence  of  nations  Ixii 

16  Effect  of  that  liberty              .             .             .             ..'"''.•             •  »&• 

17  Distinctions  between  internal  and  external,  perfect  and  imperfect  obli- 

gations and  rights         •    •.•'.«'•!        .             .             .             .  ib. 

18  Equality  of  nations          .'           ."         *t: T1"        .*          .  Ixiii 

19  Effect  of  that  equality            .              .              .              .              .              .  ib. 

20  Each  nation  is  mistress  of  her  own  actions,  when  they  do  not  affect 

the  perfect  rights  of  others              .              .              .              .             .  ib. 

21  Foundation  of  the  voluntary  law  of  nations           .             .        -.'^  ?'  '  ib. 

22  Right  of  nations  against  the  infractors  of  the  law  of  nations   .             .  Ixiv 

23  Measure  of  that  right      .              .                      •     ;           '.-          .  ib 

24  Conventional  law  of  nations,  or  law  of  treaties             .             .             .  Ix1! 

25  Customary  law  of  nations        r   ..             .             .             .             .  ib 

2*6  General  rule  respecting  that  law        .             .             .             .             .  ib 

27  Positive  law  of  nations    ......  IxV. 

28  General  maxim  respecting  the  use  of  the  necessary  and  the  voluntary 

law     .             .             .             .             .             .             .             .     '  ib. 

xix 


XX  CONTENTS. 


BOOK  I. 

OF  NATIONS  CONSIDERED  IN  THEMSELVES. 

CHAP.  I. 
Of  Nations  or  Sovereign  States. 

Sect.  Page 

1  Of  the  state,  and  of  sovereignty     .'  ...       1 

2  Authority  of  the  body  politic  over  the  members                .             .  ib. 

3  Of  the  several  kinds  of  government   .             ...             .  .2 

4  What  are  sovereign  states            .             .             .             .  ib. 

5  States  bound  by  unequal  alliance       .             .     '        .  .    ib. 

6  or  by  treaties  of  protection       .             .             .             .  ib. 

7  Tributary  states         .......       3 

8  Feudatory  states              .....%  ib. 

9  Two  states  subject  to  the  same  prince             .             .             .  .    ib. 

10  States  forming  a  federal  republic               .             .             ..."  ib. 

11  A  state  that  has  passed  under  the  dominion  of  another            .  .    ib. 

12  Objects  of  this  treatise    ......  4 

CHAP.  II. 

General  Principles  of  the  Duties  of  a  Nation  towards  herself. 

13  A  nation  ought  to  act  agreeably  to  her  nature            .             .  .4 

14  Preservation  and  perfection  of  a  nation    ....  ib. 

15  End  of  civil  society                                          .             .             .  .5 

16  A  nation  is  under  an  obligation  to  preserve  herself           .             .  ib. 

17  and  to  preserve  her  members          ....    ib. 

18  A  nation  has  a  right  to  every  thing  necessary  for  her  preservation  6 

19  She  ought  to  avoid  every  thing  that  might  occasion  her  destruction  .    ib. 

20  Her  right  to  every  thing  that  may  promote  this  end         .              .  ib. 

21  A  nation  ought  to  perfect  herself  and  her  condition    .             .  .    ib. 

22  and  to  avoid  every  thing  contrary  to  her  perfection       .  7 

23  The  right  she  derives  from  these  obligations               .             .  .    ib. 

24  Examples            .                          .             .             .             .             .  ib. 

25  A  nation  ought  to  know  herself         .            .            .            .  .8 

CHAP.  HI. 

Of  the  Constitution  of  a  State,  and  the  Duties  and  Rights  of  a  Nation 
in  that  respect. 

26  Of  the  public  authority         .            .            .»'•'.            .    •;  .       8 

27  What  is  the  constitution  of  a  state           .             .            v            .  ib. 

28  The  nation  ought  to  choose  the  best  constitution        .             .  .9 

29  Political,  fundamental,  and  civil  laws       .             .            f  "«        .  ib. 

30  Support  of  the  constitution,  and  obedience  to  the  laws             .  .     ib. 

31  Right  of  a  nation  with  respect  to  her  constitution  and  government  10 


CONTENTS.  XXI 

Sect.  Page 

32  She  may  reform  the  government        .             .            .            .  .10 

33 and  may  alter  the  constitution               .             .             .  ib. 

34  Of  the  legislative  power,  and  whether  it  can  alter  the  constitution  .     11 

35  The  nation  ought  not  to  attempt  it  without  great  caution               .  12 

36  She  is  the  judge  of  all  disputes  relative  to  the  government      .  .     ib. 

37  No  foreign  power  has  a  right  to  interfere               .             .             .  ib. 

CHAP.  IV. 

Of  the  Sovereign,  his  Obligations,  and  his  Rights. 

38  Of  the  sovereign       .  .  .  .  .  .  .12 

39  He  is  solely  established  for  the  safety  and  advantage  of  society     .  13 

40  His  representative  character  .  .  .  .  .14 

41  He  is  intrusted  with  the  obligations  of  the  nation,  and  invested  with 

her  rights               .              .              .              .              .             .  ib. 

42  His  duty  with  respect  to  the  preservation  and  perfection  of  the  nation  ib. 

43  His  rights  in  that  respect      .             .             .            ~.  ••    *•£*••           .  ib. 

44  He  ought  to  know  the  nation       .             .        t  ^  •>•         •             •  15 

45  Extent  of  his  power : — prerogatives  of  majesty           .             .             .  ib. 

46  The  prince  is  bound  to  respect  and  support  the  fundamental  laws  ib. 

47  He  may  change  the  laws  not  fundamental      .  .         ^ ' .  .16 

48  He  is  bound  to  maintain  and  observe  the  existing  laws     .             .  ib. 

49  In  what  sense  he  is  subject  to  the  laws           ....  ib. 

50  His  person  is  sacred  and  inviolable  .  .  .  .17 

51  But  the  nation  may  repress  a  tyrant,  and  renounce  her  allegiance  to  him  ib. 

52  Arbitration  between  the  king  and  his  subjects       ...  20 

53  Obedience  which  subjects  owe  to  a  sovereign               .          ;-4,,           .  21 

54  In  what  cases  they  may  resist  him            .             .  ib. 

55  Ministers                                                                                                   .  23 


CHAP.  V. 

Of  States,  Elective,  Siiccessive,  or  Hereditary,  and  of  those  called  Patrimonial. 

56  Elective  states  .  .  .  .  .  .23 

57  Whether  elective  kings  be  real  sovereigns             ...  24 

58  Successive  and  hereditary  states : — origin  of  the  right  of  succession    .  ib. 

59  Other  origin  of  that  right             .             .             .             .             .  ib. 

60  Other  sources,  which  still  amount  to  the  same  thing                .             .  24 

61  A  nation  may  change  the  order  of  the  succession               .             .  ib. 

62  Kenunciations            .....        •••  •;.'.  "•  *•       .  25 

63  The  order  of  succession  ought  commonly  to  be  observed    .             .  26 

64  Regents       ...                          ....  27 

65  Indivisibility  of  sovereignties        .             .             .             .             .  ib. 

66  Who  are  to  decide  disputes  respecting  the  succession  to  a  sovereignty  ib. 

67  The  right  of  succession  not  to  depend  on  the  judgment  of  a  foreign 

power        .  .  .  .  .  .  .  .29 

68  States  called  patrimonial  .....  30 

69  Every  true  sovereignty  is  unalienable  .  .  .  .31 

70  Duty  of  a  prince  who  is  empowered  to  nominate  his  successor       .  32 

71  His  nomination  must  be  sanctioned  by  at  least  the  tacit  ratification  of 

the  people        .......  ib. 


XX11  CONTENTS. 

CHAP.  VI. 

Principal  Objects  of  a  good  Government;  and  first,  to  provide  for  the  Neces- 
sities of  the  Nation. 

Sect.  Pag« 

72  The  object  of  society  points  out  the  duties  of  the  sovereign : — he  is 

bound  to  procure  plenty     .             .             .             .             .  .33 

73  to  take  care  that  there  be  a  sufficient  number  of  workmen       ib. 

74 to  prevent  the  emigration  of  those  that  are  useful  .     ib. 

75  Emissaries  who  entice  them  away             .             .                          .  34 

76  Labour  and  industry  must  be  encouraged       .             .        ^.  .     ib. 

CHAP.  VII, 

Of  the  Cultivation  of  the  Soil. 

77  Utility  of  Agriculture            .             .             .             .             .  .34 

78  Regulations  necessary  in  that  respect : — for  the  distribution  of  land  ib. 

79  for  the  protection  of  husbandmen  .             .             .  ..35 

80  Husbandry  ought  to  be  placed  in  an  honourable  light       .             .  ib. 

81  Cultivation  of  the  soil  a  natural  obligation     ....     ib. 

82  Public  granaries              ......  36 

CHAP.  VIII. 

Of  Commerce. 

83  Domestic  and  foreign  trade   .            .            .            .             .  .37 

84  Utility  of  domestic  trade              .             .             .             .             .  ib. 

85  Utility  of  foreign  trade         .             .             .             .             .  .     ib. 

86  Obligation  to  cultivate  domestic  trade      .             .             .             .  ib. 

87  Obligation  to  carry  on  foreign  trade                .             .             .  .38 

88  Foundation  of  the  laws  of  commerce : — right  of  purchasing          .  ib. 

89  Right  of  selling         .             .             .             .             .             .  .     ib. 

90  Prohibition  of  foreign  merchandises          .             .             .        ^    , ,  39 

91  Nature  of  the  right  of  purchasing      .             .             .             .  ib. 

92  Each  nation  to  determine  for  herself  how  she  will  carry  on  commerce      ib. 

93  How  a  nation  acquires  a  perfect  right  to  a  foreign  trade          .  .     40 

94  Simple  permission  to  carry  on  trade         ....  ib. 

95  Whether  commercial  rights  be  subject  to  prescription             .  .     ib. 

96  Imprescriptibility  of  rights  founded  on  treaty       ...  41 

97  Monopolies,  and  trading  companies  with  exclusive  privileges  .     42 

98  Balance  of  trade,  and  attention  of  government  in  that  respect       .  43 

99  Import  duties            .             .             .             .             .             .  .     ib. 

CHAP.  IX. 
Of  the  Care  of  the  Public  Ways;  and  of  Tolls. 

100  Utility  of  highways,  canals,  &c.       .             .             .             .  .43 

101  Duty  of  government  in  that  respect        .             .        ..»;.,        .  ib. 

102  Its  right  in  that  respect      .            .            .         . ',,  .  ,.        .  44 

103  Foundation  of  the  right  to  demand  toll          t*j  . .  „ .        .             .  ib. 

104  Abuse  of  that  right             .,            .             .,         '.„.           .  .     ib. 


CONTENTS.  Xxiil 

CHAP.  X. 

Of  Money  and  Exchange. 

Sect.  Page 

105  Establishment  of  money      .  .  .  .  .  .45 

106  Duty  of  the  nation  or  prince  with  respect  to  the  coin      .  .  ib. 

107  Their  rights  in  that  respect  .  .  .  .  .46 

108  How  one  nation  may  injure  another  in  the  article  of  coin        -<  .  47 

109  Exchange,  and  commercial  laws       .  .  .  .  ib. 

CHAP.  XI. 

Second  Object  of  a  good  Government, — to  procure  the  true  Happiness  of  a, 
Nation. 

110  A  nation  is  bound  to  labour  after  her  own  happiness            .  .     47 

111  Instruction        .             .•            .              .              .                       .  i  >,  ib. 

112  Education  of  youth              .             .         <*nii#.        .             .  .48 

113  Arts  and  sciences           ......  ib. 

114  Freedom  of  philosophical  discussion              .             .             .  .49 

115  Love  of  virtue,  and  abhorrence  of  vice,  to  be  excited       .             .  51 

116  The  nation  may  hence  discover  the  intention  of  her  rulers  .     ib. 

117  The  nation,  or  public'person,  bound  to  perfect  her  understanding  and  will   52 

118  and  to  direct  the  knowledge  and  virtues  of  the  citizens  to 

the  welfare  of  the  society       .  .  -.        -•?  •  52 

119  Love  for  their  country         .  .  .  .  .  .53 

120 in  individuals  .  .  .  .  .  ib. 

121  in  the  nation  or  state  itself,  and  in  the  sovereign  .     ib. 

122  Definition  of  the  term  "  country"  ....  ib. 

123  How  shameful  and  criminal  to  injure  our  country  .  .     54 

124  The  glory  of  good  citizens : — Examples  .  .        '     .  '.      ib. 

CHAP.  XII. 

Of  Piety  and  Religion. 

125  Piety 55 

126  It  ought  to  be  attended  with  knowledge  .  .  .          ib. 

127  Religion,  internal  and  external        .        '  '  .        -     .,  /        .  .56 

128  Rights  of  individuals  : — liberty  of  conscience      .  .  .  ib. 

129  Public  establishment  of  religion : — rights  and  duties  of  the  nation         ib. 
130 when  there  is  as  yet  no  established  religion  .  57 

131  when  there  is  an  established  religion        .        s  • .'  '"        .     ib. 

132  Duties  and  rights  of  the  sovereign  with  respect  to  religion          v  58 

133  where  there  is  an  established  religion       .        : '  V  '         .     59 

134  Objects  of  his  care,  and  the  means  he  ought  to  employ  .  60 

135  Toleration  .  .  .  .  .  .  .     ib. 

136  How  the  prince  is  to  act  when  the  nation  is  resolved  to  change  her 

religion  .  .  .  .  .  .  .  ib. 

137  Difference  of  religion  does  not  deprive  a  prince  of  his  crown        .  61 

138  Duties  and  rights  of  the  sovereign  reconciled  with  those  of  the  subjects  ib. 

139  The  sovereign  ought  to  have  the  inspection  of  the  affairs  of  religion, 

and  authority  over  those  who  teach  it  .  .  .62 

140  He  is  bound  to  prevent  the  abuse  of  the  established  religion        .  63 

141  His  authority  over  the  ministers  of  religion  .  .  .     ib. 


CONTENTS. 

Sect.  Page 

142  Nature  of  that  authority      .             .             .             ,             .  .64 

143  Rule  to  be  observed  with  respect  to  ecclesiastics              .  .           ib. 

144  Recapitulation  of  the  reasons  which  establish  the  sovereign's  rights  in 

matters  of  religion,  ib. — Authorities  and  examples      .  .           65 

145  Pernicious  consequences  of  the  contrary  opinion       .             .  .     ib. 

146  Abuses  particularized. — 1.  The  power  of  the  popes          .  .           66 

147  2.  Important  employments  conferred  by  a  foreign  power  .     68 

148  3.  Powerful  subjects  dependent  on  a  foreign  court  .           ib. 

149  4.  Celibacy  of  the  priests  : — Convents             .             .  .69 

150  5.  Enormous  pretensions  of  the  clergy : — Pre-eminence  .           70 

151  6.  Independence,  immunities               .         .  ., ,           .  .71 

152  7.  Immunity  of  church  possessions       ;    ,             .  .    ..      72 

153  8.  Excommunication  of  men  in  office               .             .  .73 

154  9.             and  of  sovereigns  themselves       ...  74 

155  10.  The  clergy  drawing  every  thing  to  themselves,  and  inter- 

rupting the  course  of  justice             .            .  .           75 

156  11.  Money  drawn  to  Rome       .             .             .             .  .76 

157  12.  Laws  and  customs  inimical  to  the  welfare  of  states  .           ib. 


CHAP.  XIII. 

Of  Justice  and  Polity. 

158  A  nation  is  bound  to  make  justice  flourish  .  .  .77 

159  to  establish  good  laws  ....  ib. 

160  to  enforce  them  .  .  .  .  .78 

161  Functions  and  duties  of  the  prince  in  that  respect  .  .  ib. 

162  How  he  is  to  dispense  justice  .  .  .  .  .  ib. 

163  His  duty  to  appoint  upright  and  enlightened  judges        .  .  ib 

164  The  ordinary  courts  should  determine  causes  relating  to  the  revenue  79 

165  Necessary  to  establish  supreme  courts,  from  whose  sentence  there  shall 

be  no  appeal       .  .  .  .  .  .     ib. 

166  The  prince  bound  to  observe  the  forms  of  justice  .  .  80 

167  to  support  the  authority  of  the  judges,  and  enforce  their 

decrees          .......  ib. 

168  Distributive  justice  : — distribution  of  employments  and  rewards        .  ib. 

169  Punishment  of  transgressors  : — foundation  of  the  right  of  punishing  81 

170  Criminal  laws          .              .              .             .              .              .              .  ib. 

171  Degree  of  punishment                 .....  82 

172  Execution  of  the  laws          .             .             .             .             .             .  ib. 

173  Right  of  pardoning        ......  83 

174  Internal  police        .             .             .             .             .             .  ib. 

175  Duel  or  single  combat  .  .  .  .  .84 

176  Means  of  putting  a  stop  to  that  disorder      ....  ib. 

CHAP.  XIV. 

Third  Object  of  a  good  Government, — to  fortify itsdj 'against  External  Attacks. 

177  A  nation  ought  to  fortify  herself  against  external  attacks     .  .     87 

178  National  strength                       .             .             .             .             .  ib. 

179  Increase  of  population         .             .             .             .             .  .     ib. 

180  Valour 88 

181  Other  military  virtues         .            .            .            .            .  .89 


CONTENTS.  XXV 

Sect.  Page 

182  Riches        .  89 

183  Public  revenues  and  taxes  90 

184  The  nation  ought  not  to  increase  her  power  by  unlawful  means        .  ib. 

185  Power  is  but  relative     ......  ib. 


CHAP.  XV. 

Of  the  Glory  of  a  Nation. 

186  Advantages  of  glory            .            .            .            .  .  .91 

187  Duty  of  the  nation. — How  true  glory  is  acquired  .  .          ib. 

188  Duty  of  the  prince               .             .             .             .  .  .     ib. 

189  Duty  of  the  citizens       .             .             .  ,    ;•  92 

190  Example  of  the  Swiss          .             .             .             .  .  .16. 

191  Attacking  the  glory  of  a  nation  is  doing  her  an  injury  .  .          93 

CHAP.  XVI. 

Protection  sought  by  a  Nation,  and  her  voluntary  submission  to  a  Foreign  Power. 

192  Protection               .             .            .             .            .            .  .93 

193  Voluntary  submission  of  one  nation  to  another                .            .  94 

194  Several  kinds  of  submission             .             .             .             .  .     ib. 

195  Right  of  the  citizens  when  the  nation  submits  to  a  foreign  power  ib. 

196  These  compacts  annulled  by  the  failure  of  protection             .  .     95 

197  or  by  the  infidelity  of  the  party  protected       .  .  ib. 

198  and  by  the  encroachments  of  the  protector  .  .     ib. 

199  How  the  right  of  the  nation  protected  is  lost  by  her  silence         .          96 

CHAP.  XVII. 

How  a  Nation  may  separate  herself  from  the  State  of  which  she  is  a  Member, 
and  renounce  her  Allegiance  to  her  Sovereign  when  she  is  not  protected. 

200  Difference  between  the  present  case  and  those  in  the  preceding  chapter    96 

201  Duty  of  the  members  of  a  state,  or  subjects  of  a  prince,  who  are  in 

danger     .  .  .  .  .  .  .  .97 

202  Their  right  when  they  are  abandoned     ....          ib. 

CHAP.  xvm. 

Establishment  of  a  Nation  in  a  Country. 

203  Possession  of  a  country  by  a  nation              .            .  .             .98 

204  Her  right  over  the  part  in  her  possession            .             .  .           ib. 

205  Acquisition  of  the  sovereignty  in  a  vacant  country    .  .     99 

206  Another  manner  of  acquiring  the  empire  in  a  free  country  .           ib. 

207  How  a  nation  acquires  the  property  of  a  desert  country  .             .     ib. 

208  A  question  on  this  subject         .             .             .             .  ib. 

209  Whether  it  be  lawful  to  take  possession  of  part  of  a  country  inhabited 

only  by  a  few  wandering  tribes          .  .  .  .  100 

210  Colonies 101 

4  C 


XXVI  CONTENTS. 

CHAP.  XIX. 

Of  our  Native  Country,  and  various  Matters  relating  to  it. 

Sect.  Pxge 

211  What  is  our  country  .  .  .  .  .  .101 

212  Citizens  and  natives       ......  ib. 

213  Inhabitants  .  .  .  .  .  .  .102 

214  Naturalization                .             .             .    ,,        .             .            .  ib. 

215  Citizens'  children  born  in  a  foreign  country              .             .             .  ib. 

216  Children  born  at  sea     .              .             .             .             .             .  ib. 

217  Children  born  in  the  armies  of  the  state,  or  in  the  house  of  its  minister 

at  a  foreign  court       ......  103 

218  Settlement               .             .             .             .             .             .             .  ib. 

219  Vagrants           .......  ib. 

220  .Whether  a  person  may  quit  his  country       ....  ib. 

221  How  a  person  may  absent  himself  for  a  time       .  .  .105 

222  Variation  of  the  political  laws  in  that  respect : — they  must  be  obeyed  ib. 

223  Cases  in  which  a  citizen  has  a  right  to  quit  his  country    .             .  ib 

224  Emigrants                .             .             .             ...             ,             .  106 

225  Sources  of  their  right    .             .             .             .             ...  ib. 

226  If  the  sovereign  infringes  their  right,  he  injures  them           .             .  107 

227  Supplicants       ......  L  ib. 

228  Exile  and  banishment          .             .             .             .             .             .  ib. 

229  The  exile  and  the  banished  man  have  a  right  to  live  somewhere  108 

230  Nature  of  that  right             .             .             .             .             .             .  ib. 

231  Duty  of  nations  towards  them    .             .             .  ib. 

232  A  nation  cannot  punish  them  for  faults  committed  out  of  her  territories  109 
233 except  such  as  affect  the  common  safety  of  mankind   .  ib. 

CHAP.  XX. 

Public,  Common,  and  Private  Property. 

234  What  the  Komans  called  res  communes         .             .             ....  109 

235  Aggregate  wealth  of  a  nation,  and  its  divisions               .             .  ib. 

236  Two  modes  of  acquiring  public  property       .  .  .  .110 

237  The  income  of  the  public  property  is  naturally  at  the  sovereign's  dis- 

posal             .......  ib. 

238  The  nation  may  grant  him  the  use  and  property  of  her  common  pos- 

sessions ......                           .  ib. 

239  or  allow  him  the  domain,  and  reserve  to  herself  the  use  of 

them              .             .             .             ....  ib. 

240  Taxes Ill 

241  The  nation  may  reserve  to  herself  the  right  of  imposing  them     .  ib. 

242  Sovereign  possessing  that  power      .             .             .             .             .  ib. 

243  Duties  of  the  prince  with  respect  to  taxes           .             ,             .  112 

244  Eminent  domain  annexed  to  the  sovereignty             .          *  .             .  ib. 

245  Dominion  over  public  property  .             .             .         Tyf--'  -         .  113 

246  -The  sovereign  may  make  laws  respecting  the  use  of  things  possessed 

in  common           .             .              .             .             .             .  ib. 

247  Alienation  of  the  property  of  a  corporation          .        •--..-.        .  ib. 

248  Use  of  common  property      .             .             .         ./•*.'         .             •  114 

249  How  each  member  is  to  enjoy  it             .             .             .             .  ib. 

250  Eight  of  anticipation  in  the  use  of  it            .        '-  "'.'•  •'*        .             .  ib. 

251  The  same  right  in  another  case              -V            .             .             .  ib. 


CONTENTS.  XXV11 

Sect.  Page 

252  Preservation  and  repairs  of  common  possessions        .             .  .  115 

253  Duty  and  right  of  the  sovereign  in  that  respect                            .  ib. 

254  Private  property                  .             .             .             .             ,  .     ib. 

255  The  sovereign  may  subject  it  to  regulations  of  police      .             .  ib. 

256  Inheritances            .             .             ...             •             •  .116 

CHAP.  XXI. 

Of  the  Alienation  of  the  Public  Property,  or  the  Domain,  and  that  of  a  Part 
of  the  State. 

257  The  nation  may  alienate  her  public  property             .         '   .  .  116 

258  Duties  of  the  nation  in  that  respect        ....  ib. 

259  Duties  of  the  prince             .                      ;    .             .             .  .  117 

260  He  cannot  alienate  the  public  property               .          ^  .             .  ib. 

261  The  nation  may  give  him  a  right  to  do  it     .             .             .  .     ib. 

262  Rules  on  that  subject  with  respect  to  treaties  between  nation  and  nation     ib. 

263  Alienation  of  a  part  of  the  state     :".             .             .             .  .  118 

264  Rights  of  the  dismembered  party           ....  ib. 

265  Whether  the  prince  has  power  to  dismember  the  state          .  .119 


CHAP.  XXII. 

Of  Rivers,  Streams,  and  Lakes. 

266  A  river  that  separates  two  territories            ....  120 

267  Bed  of  a  river  which  is  dried  up  or  takes  another  course            .  121 

268  Right  of  alluvion                 „                         .             .             .             .  ib. 

269  Whether  alluvion  produces  any  change  in  the  right  to  a  river     .  ib. 

270  Consequence  of  a  river  changing  its  bed       .         ..<-,-.      *i  »    -        .  122 

271  Works  tending  to  turn  the  current         .             .           • .    .    .     A  ib. 

272  or  generally  prejudicial  to  the  rights  of  others      .             .  ib. 

273  Rules  relative  to  interfering  rights         .             .             *.;           .  ib. 

274  Lakes         .          >,                        ..            ..       ww  <        .            .  123 

275  Increase  of  a  lake           .                          .           :*<•:    -  ',*  ;,*        .  ib. 

276  Land  formed  on  the  banks  of  a  lake             .  ..      ;  .,.-:          .  .-         .  125 

277  Bed  of  a  lake  dried  up               .                     -.-  4  ,? >        .        ..,.,*.,.„  ib. 

278  Jurisdiction  over  lakes  and  rivers                ....  ib. 


CHAP.  XXIII. 

Of  the  Sea. 

279  The  sea,  and  its  use  .  .  .  .  .  .  125 

280  Whether  the  sea  can  be  possessed,  and  its  dominion  appropriated          ib. 

281  Nobody  has  a  right  to  appropriate  to  himself  the  use  of  the  open  sea    ib. 

282  A  nation  attempting  to  exclude  another  does  her  an  injury       .  126 

283  She  even  does  an  injury  to  all  nations          ....     ib. 

284  She  may  acquire  an  exclusive  right  by  treaties  .  .  ib. 

285 —  but  not  by  prescription  and  long  use        .  .  .  127 

286 unless  by  virtue  of  a  tacit  agreement  .  .  ib. 

287  The  sea  near  the  coasts  may  become  property          .  .  .     ib. 


XXviii  CONTENTS. 

Sect.  Page 

288  Another  reason  for  appropriating  the  sea  bordering  on  the  coasts  .  128 

289  How  far  that  possession  may  extend      ....  ib. 

290  Shores  and  ports     .                          .  .  129 

291  Bays  and  straits             .             .             .                      j    ,    '         .  ib. 

292  Straits  in  particular             .             .             .             .             .  .130 

293  Right  to  wrecks            .             .            .            .             .  ib. 

294  A  sea  inclosed  within  the  territories  of  a  nation       .             .  .     ib. 

295  The  parts  of  the  sea  possessed  by  a  sovereign  are  within  his  jurisdiction  131 


BOOK  II. 

OF  A  NATION  CONSIDERED  IN  HER  RELATION  TO  OTHER  STATES. 

CHAP.  I. 

Of  the  common  Duties  of  a  Nation  towards  other  States,  or  the  Offices  of 
Humanity  between  Nations. 

1  Foundation  of  the  common  and  mutual  duties  of  nations        .  .  133 

2  Offices  of  humanity,  and  their  foundation  .  .  .         134 

3  General  principles  of  all  the  mutual  duties  of  nations  .  .  135 

4  Duties  of  a  nation  for  the  preservation  of  others  .  .  ib. 

5  She  is  bound  to  assist  a  nation  afflicted  with  famine  or  any  other 

calamity          .......         136 

6  She  is  bound  to  contribute"  to  the  perfection  of  other  states     .  .     ib. 

7  but  not  by  force  .....         137 

8  The  right  to  require  the  offices  of  humanity  .  .  .  138 

9  The  right  of  judging  whether  they  are  to  be  granted         .  .  ib. 

10  A  nation  is  not  to  compel  another  to  perform  those  offices  of  which  the 

refusal  is  no  wrong      ......  ib. 

11  Mutual  love  of  nations          .  .  .     ib. 

12  Each  nation  is  bound  to  cultivate  the  friendship  of  others  .  ib. 

13  to  perfect  herself,  with  the  view  to  the  advantage  of  others, 

and  to  set  them  good  examples  ....         139 

14  to  take  care  of  their  glory  ....     ib. 

15  Difference  of  religion  ought  not  to  preclude  the  offices  of  humanity  ib. 

16  Rule  and  measure  of  the  offices  of  humanity               .             .  .  140 

17  Particular  limitation  with  respect  to  the  prince     .          \  .            .  141 

18  No  nation  ought  to  injure  others       .                     ...,.'            .  .     ib. 

19  Offences              .            .            .            .            ....    ^        .  142 

20  Bad  custom  of  the  ancients                .            .            .         .  ,  -  ;  .  143 

CHAP.  II. 

Of  the  Mutual  Commerce  between  Nations. 

21  General  obligation  of  nations  to  carry  on  mutual  commerce    .  143 

22  They  are  bound  to  favour  trade  .  .  •  '        .  .         144 

23  Freedom  of  trade     ...  .     ib. 


CONTENTS. 

Sect.  Pane 

24  Right  of  trading  belonging  to  nations             ....  144 

25  Each  nation  is  sole  judge  of  the  propriety  of  commerce  on  her  own  part  ib. 

26  Necessity  of  commercial  treaties                      *.            .             .             .  145 

27  General  rule  concerning  those  treaties      .             .             .             .  ib. 

28  Duty  of  nations  in  making  such  treaties         .                          .             .  ib. 

29  Perpetual  or  temporary  treaties,  or  treaties  revocable  at  pleasure  ib. 

30  Nothing  contrary  to  the  tenor  of  a  treaty  can  be  granted  to  a  third  party  146 

31  How  far  lawful  to  give  up  by  treaty  the  liberty  of  trading  with  other 

nations                 .             .             .             .             .             .             .  ib. 

32  A  nation  may  restrict  her  commerce  in  favour  of  another  nation  .  ib. 

33  A  nation  may  appropriate  to  herself  a  particular  branch  of  trade         .  147 

34  Consuls  .                        ...  ib. 


CHAP.  m. 

Of  the  Dignity  and  Equality  of  Nations, — of  Titles, — and  other  Marks 
of  Honour. 

35  Dignity  of  nations  or  sovereign  states             ....  149 

36  Their  equality     .             .             .        '*?"7  •         .             .             .  ib. 

37  Precedency            >-v»  '/.        .             .             .         ,r. ,,-» ,,     ;1-*.v,,J        •  ib. 

38  The  form  of  government  is  foreign  to  this  question           .             .  150 

39  A  state  ought  to  retain  her  rank,  notwithstanding  any  changes  in  the 

form  of  her  government                 .             .             .              .  ib. 

40  Treaties  and  established  customs  are  to  be  observed  in  that  respect  ib. 

41  Name  and  honours  given  by  the  nation  to  her  conductor        .  .  151 

42  Whether  a  sovereign  may  assume  what  title  and  honours  he  pleases  152 

43  Right  of  other  nations  in  that  respect         .   .              .             .  .     ib. 

44  Their  duty           .......  ib. 

45  How  titles  and  honours  may  be  secured         .             . "          .  .  153 

46  We  must  conform  to  general  custom         ....  ib. 

47  Mutual  respect  due  by  sovereigns  to  each  other         .            .  .     ib. 

48  How  a  sovereign  ought  to  maintain  his  dignity             ^   .            .  154 


CHAP.  IV. 

Of  the  Right  to  Security,  and  the  Effects  of  the  Sovereignty  and  Independence 
of  Nations. 

49  Right  to  security      .  .  .  .  .  .  .154 

50  It  produces  the  right  of  resistance  ^  .  .  -re        .  ib. 

51  and  that  of  obtaining  reparation     .  .  .  - .  155 

52 and  the  right  of  punishing      ~f *•*•        .  .  .  ib. 

53  Right  of  all  nations  against  a  mischievous  people       .  .  .  ib. 

54  No  nation  has  a  right  to  interfere  in  the  government  of  another  state  ib. 

55  One  sovereign  cannot  make  himself  judge  of  the  conduct  of  another  ib. 

56  How  far  lawful  to  interfere  in  a  quarrel  between  a  sovereign  and  his 

subjects  .......  156 

57  Right  of  opposing  the  interference  of  foreign  powers  in  the  affairs  of 

-    government   .  .  .  .  .  .  .157 

58  The  same  right  with  respect  to  religion          ....     ib. 

59  No  nation  can  be  constrained  in  religious  concerns  .  .         158 

60  Offices  of  humanity  in  these  matters : — missionaries  .  •     ib, 

c2 


CONTENTS. 


Sect.  Page 

61  Circumspection  to  be  used     .  .  .  .  .  159 

62  What  a  sovereign  may  do  in  favour  of  those  who  profess  his  religion 

in  another  state  .  .  ib. 


CHAP.  V. 

Of  the  Observance  of  Justice  between  Nations. 

63  Necessity  of  the  observance  of  justice  in  human  society          .             .  160 

64  Obligation  of  all  nations  to  cultivate  and  observe  justice                .  ib. 

65  Right  of  refusing  to  submit  to  injustice          ....  ib. 

66  This  right  is  a  perfect  one                                                    .             .  161 

67  It  produces — the  right  of  self-defence            ....  ib. 

68  the  right  of  doing  ourselves  justice        .  .  .  ib. 

69  The  right  of  punishing  injustice         .  .  .  .  .     ib. 

70  Right  of  all  nations  against  one  that  openly  despises  justice          .  ib. 

CHAP.  VI. 

Of  the  Concern  a  Nation  may  have  in  the  Actions  of  her  Citizens. 

71  The  sovereign  is  bound  to  avenge  the  wrongs  of  the  state  and  to  pro- 

tect the  citizens  .  .  .  .  .  .161 

72  He  must  not  suffer  his  subjects  to  offend  other  nations  or  their  citizens  162 

73  The  acts  of  individuals  not  imputable  to  the  nation  .  .     ib. 
74 unless  she  approve  or  ratify  them         .             .             .  ib. 

75  Conduct  to  be  pursued  by  the  offended  party              .             .             .  ib. 

76  Duty  of  the  aggressor's  sovereign              ....  163 

77  If  he  refuses  justice,  he  becomes  a  party  in  the  fault  and  offence        .  ib. 

78  Another  case  in  which  the  nation  is  guilty  of  the  crimes  of  the  citizens  164 

CHAP.  VII. 

Effects  of  the  Domain,  between  Nations. 

79  General  effects  of  the  domain  .....  164 

80  What  is  comprehended  in  the  domain  of  a  nation  .  .         165 

81  The  property  of  the  citizens  is  the  national  property  with  respect  to 

foreign  states       .             .             .             .             .             .  .     ib. 

82  A  consequence  of  that  principle  .             .             .                         '.  ib. 

83  Connection  of  the  domain  of  the  nation  with  the  sovereignty  .     ib. 

84  Jurisdiction         .......  166 

85  Effects  of  the  Jurisdiction  in  foreign  countries           .             .  .     ib. 

86  Desert  and  uncultivated  places                  ....  167 

87  Duty  of  the  nation  in  that  respect                   ....  168 

88  Right  of  possessing  things  that  have  no  owner     .             .             .  ib. 

89  Rights  granted  to  another  nation       .             .             .             .  .     ib. 

90  Not  allowable  to  expel  a  nation  from  the  country  she  inhabits        .  ib. 
91 nor  to  extend  by  violence  the  bounds  of  empire      .  .  169 

92  The  limits  of  territories  ought  to  be  carefully  ascertained               .  ib. 

93  Violation  of  territory             .             .             .             .             .  .     ib. 

94  Prohibition  to  enter  the  territory              ....  170 

95  A  country  possessed  by  several  nations  at  the  same  time        .  .     ib. 

96  A  country  possessed  by  a  private  person                 .            .  ib. 


CONTENTS.  XXXI 

Sect.  page 

97  Independent  families  in  a  country  ....  170 

98  Possessions  of  certain  places  only,  or  of  certain  rights,  in  a  vacant 

country          .  .  .         '•".',          .  ...  .         171 

CHAP.  VIII. 

Rules  respecting  Foreigners. 

99  General  idea  of  the  conduct  a  state  ought  to  observe  towards  foreigners  171 

100  Entering  the  territory  •**>  • J   **y  .  .  .172 

101  Foreigners  are  subject  to  the  laws  .  .    _   ,    .  ib. 

102  and  punishable  according  to  the  laws          f    .  v^        .  ib. 

103  Who  is  the  judge  of  their  disputes            . ,,.,. '  (:    r»,...    * ..  »T  ,?*  -173 

104  Protection  due  to  foreigners       .             .             .             .  ib. 

105  Their  duties             .              .              .             .             .             .  .     ib. 

106  To  what  burthens  they  are  subject         t  '           .             .             .  174 

107  Foreigners  continue  members  of  their  own  nation                  .  .     ib. 

108  The  state  has  no  right  over  the  person  of  a  foreigner      .             .  ib. 

109  nor  over  his  property       .         ••'-••-    ,    -.    •    • :-   :tj-        .  174 

110  Who  are  the  heirs  of  a  foreigner         ••».'-          ..'.       „  '        .«         175 

111  Will  of  a  foreigner  .  .        ' -Vw        •  •  •     #• 

112  Escheatage        .......         176 

113  The  right  of  traite  foraine  .  .  .  .  .177 

114  Immovable  property  possessed  by  an  alien          .  .  .  ib 

115  Marriages  of  aliens  .  .  .  .  .  .     ib. 

CHAP.  IX. 

Of  the  Rights  retained  by  all  Nations  after  the  Introduction  of  Domain 
and  Property. 

116  What  are  the  rights  of  which  men  cannot  be  deprived          .             .  178 

117  Rights  still  remaining  from  the  primitive  state  of  communion     .  ib. 

118  Right  retained  by  each  nation  over  the  property  of  others    .             .  ib. 

119  Right  of  necessity       ...                          .         *^<p'   "\."'  *'&• 

120  Right  of  procuring  provision  by  force           .         '*  '..' :        vi' '           .  179 

121  Right  of  making  use  of  things  belonging  to  others          .             .  ib. 

122  Right  of  carrying  off  women            .             .             .             .  ib. 

123  Right  of  passage            .        ;.....          .        lijjjpJJ        .             .  180 

124 and  of  procuring  necessaries         ....  ib. 

125  Right  of  dwelling  in  a  foreign  country  .  .             .           ib. 

126  Things,  of  which  the  use  is  inexhaustible     .  ^««i     A*tt-j<*        .  181 

127  Right  of  innocent  use    .              .         *    .  ^   *  .    ^        .             .    v      ib. 

128  Nature  of  that  right  in  general         .             .  .  .             .182 

129  and  in  cases  not  doubtful       ....  ib. 

130  Exercise  of  that  right  between  nations         ....     ib.' 

CHAP.  X. 

Sow  a  Nation  is  to  use  Tier  Right  of  Domain,  in  order  to  discharge  her  Duties 
towards  other  Nations,  with  respect  to  the  Innocent  Use  of  Things. 

131  General  duty  of  the  proprietor         .....  183 

132  Innocent  passage  ......  ib. 


XXX11  CONTENTS. 

Sect.  page 

133  Securities  may  be  required  .....  184 

134  Passage  of  merchandise  .  ....  16. 

135  Residence  in  the  country    .  .  .  .  .  .     ib. 

136  How  we  are  to  act  towards  foreigners  who  desire  a  perpetual  residence  185 

137  Right  accruing  from  a  general  permission    ....     ib. 

138  A  right  granted  as  a  favour        .....         186 

139  The  nation  ought  to  be  courteous     .  » .        i     ,  .  .        .  .     ib. 

CHAP.  XI. 

Of  Usucaption  and  Prescription  between  Nations. 

140  Definition  of  usucaption  and  prescription     ....  187 

141  Usucaption  and  prescription  derived  from  the  law  of  nature        .  ib. 

142  What  foundation  is  required  for  ordinary  prescription  .  .  189 

143  Immemorial  prescription  .  .  .  .  .  ib. 

144  Claimant  alleging  reasons  for  his  silence      ....  190 

145  Proprietor  sufficiently  showing  that  he  does  not  mean  to  abandon  his 

right       .             .             .             .             .             .             .             .  ib. 

146  Prescription  founded  on  the  actions  of  the  proprietor      .             .  ib. 

147  Usucaption  and  prescription  take  place  between  nations        .             .  ib. 

148  More  difficult,  between  nations,  to  found  them  on  a  presumptive  desertion  ib. 

149  Other  principles  that  enforce  prescription     ....  191 

150  Effects  of  the  voluntary  law  of  nations  on  this  subject    .             .  ib. 

151  Law  of  treaties,  or  custom,  in  this  matter    ....  192 

CHAP.  XII. 
Of  Treaties  of  Alliance  and  other  Public  Treaties. 

152  Nature  of  treaties                .             .             .                      .;?.             .  192 

153  Compacts,  agreements,  or  conventions    ....  ib. 

154  By  whom  treaties  are  made              .             .             .             .             .  ib. 

155  Whether  a  state  under  protection  may  make  treaties       .             .  193 

156  Treaties  concluded  by  proxies  or  plenipotentiaries    .             .             .  ib. 

157  Validity  of  treaties         .  .  .  .  .194 

158  Injury  does  not  render  them  void    .             .             .             .             .  ib. 

159  Duty  of  nations  in  that  respect               ....  ib. 

160  Nullity  of  treaties  which  are  pernicious  to  the  state               .             .  ib. 

161  Nullity  of  treaties  made  for  an  unjust  or  dishonest  purpose          .  195 

162  Whether  an  alliance  may  be  contracted  with  those  who  do  not  profess 

the  true  religion         ......  ib. 

163  Obligation  to  observe  treaties  .  .  .  .  .     ib. 

164  The  violation  of  a  treaty  is  an  act  of  injustice     .  .  .         196 

165  Treaties  cannot  be  made  contrary  to  those  already  existing  .     ib. 

166  How  treaties  may  be  concluded  with  several  nations  with  the  same  view  197 

167  The  more  ancient  ally  entitled  to  a  preference          .  .  .     ib. 

168  We  owe  no  assistance  in  an  unjust  war  .  .  .  ib. 

169  General  division  of  treaties ; — those  that  relate  to  things  already  due 

by  the  law  of  nature  .....  t'6. 

170  Collision  of  those  treaties  with  the  duties  we  owe  to  ourselves  .  198 

171  Treaties  in  which  we  barely  promise  to  do  no  injury  .         .  ib. 

172  Treaties  concerning  things  that  are  not  naturally  due  : — equal  treaties     ib. 


CONTENTS.  ,  XXXlii 

Sect.  Page 

173  Obligation  to  preserve  equality  in  treaties    ....  199 

174  Difference  between  equal  treaties  and  equal  alliances       .  .         200 

175  Unequal  treaties,  and  unequal  alliances        ....     ib. 

176  An  alliance  with  diminution  of  sovereignty  may  annul  preceding 

treaties          .  .  .  .202 

177  We  ought,  as  much  as  possible,  to  avoid  making  unequal  alliances       203 

178  Mutual  duties  of  nations  with  respect  to  unequal  alliances  .  ib. 

179  in  alliances  where  the  inequality  is  on  the  side  of  the  more 

powerful  party  .  '  .  .  .  .  .     ib. 

180  How  inequality  of  treaties  and  alliances  may  be  conformable  to  the 

law  of  nature             ......  204 

181  Inequality  imposed  by  way  of  punishment               .             .    '         .  205 

182  Other  kinds,  of  which  we  have  spoken  elsewhere            .             .  ib. 

183  Personal  and  real  treaties                 .              .             .             .  ib. 

184  Naming  the  contracting  parties  in  the  treaty  does  not  render  it  personal  ib. 

185  An  alliance  made  by  a  republic  is  real         ....  ib. 

186  Treaties  concluded  by  kings  or  other  monarchs           ",•':..-  !        .  206 

187  Perpetual  treaties,  and  those  for  a  certain  time        .        ••••  .' >         .  ib. 

188  Treaties  made  for  the  king  and  his  successors     .             .             .  ib. 

189  Treaties  made  for  the  good  of  the  kingdom               .             .  '•'          .  ib. 

190  How  presumption  ought  to  be  founded  in  doubtful  cases              .  207 

191  The  obligations  and  rights  resulting  from  a  real  treaty  pass  to  the 

successors            .             .             .             .           -,  •          .  .  208 

192  Treaties  accomplished  once  for  all,  and  perfected            v. '          .  ib. 

193  Treaties  already  accomplished  on  the  one  part          t             .  .  209 

194  The  personal  alliance  expires  if  one  of  the  parties  ceases  to  reign  211 

195  Treaties  in  their  own  nature  personal  ....     ib. 

196  Alliance  concluded  for  the  defence  of  the  king  and  royal  family  ib. 

197  Obligation  of  a  real  alliance,  when  the  allied  king  is  deposed  .  212 

CHAP.  XIII. 

Of  the  Dissolution  and  Renewal  of  Treaties. 

198  Expiration  of  alliances  made  for  a  limited  time       .  .  .  213 

199  Renewal  of  treaties        .  .  .  .  .  '          .  ib. 

200  How  a  treaty  is  dissolved,  when  violated  by  one  of  the  contracting  parties  214 

201  The  violation  of  one  treaty  does  not  cancel  another         .  .  ib. 

202  The  violation  of  one  article  in  a  treaty  may  cancel  the  whole  .  215 

203  The  treaty  is  void  by  the  destruction  of  one  of  the  contracting  powers  216 

204  Alliances  of  a  state  that  has  afterwards  put  herself  under  the  protec- 

tion of  another   .  .  .  -          ,< .         .  .  ib. 

205  Treaties  dissolved  by  mutual  consent      .         "  .  '..'.        .  .         217 

CHAP.  XIV. 

Of  other  public  Conventions) — of  those  that  are  made  by  Subordinate  Powers, 
— -particularly  of  the,  Agreement  called  in  Latin  Sponsio, — and  of  Conven- 
tions between  the  Sovereign  and  Private  Persons. 

206  Conventions  made  by  sovereigns      .....  218 

207  Those  made  by  subordinate  powers         .  .  .  .it, 

208  Treaties  concluded  by  a  public  person,  without  orders  from  the  sove- 

reign, or  without  sufficient  powers  ....  219 

5 


XXXIV  CONTENTS. 

Sect.  P*g» 

209  The  agreement  called  sponsio  .... 

210  The  state  is  not  bound  by  such  an  agreement                  .             .  220 

211  To  what  the  promiser  is  bound  when  it  is  disavowed             .             .  ib. 

212  To  what  the  sovereign  is  bound              ....  223 

213  Private  contracts  of  the  sovereign                 .             .                          .  226 

214  Contracts  made  by  him  with  private  persons,  in  the  name  of  the  state  ib. 

215  They  are  binding  on  the  nation,  and  on  his.  successors          .             .  227 

216  Debts  of  the  sovereign  and  the  state      ....  ib. 

217  Donations  of  the  sovereign               .....  228 

CHAP.  XV. 

Of  the  Faith  of  Treaties. 

218  What  is  sacred  among  nations         .....  229 

219  Treaties  sacred  between  nations              ....  ib. 

220  The  faith  of  treaties  is  sacred          .             .             .             .             .  ib. 

221  He  who  violates  his  treaties,  violates  the  law  of  nations               .  ib. 

222  Right  of  nations  against  him  who  disregards  the  faith  of  treaties      .  230 

223  The  law  of  nations  violated  by  the  popes            .             .             .  ib. 

224  This  abuse  authorized  by  princes     .             .                                       .  231 

225  Use  of  an  oath  in  treaties. — It  does  not  constitute  the  obligation  232 

226  It  does  not  change  the  nature  of  obligations             .             .             .  ib. 

227  It  gives  no  pre-eminence  to  one  treaty  above  another      .             .  ib. 

228  It  cannot  give  force  to  a  treaty  that  is  invalid         .             .             .  233 

229  Asseverations                 ......  ib. 

230  The  faith  of  treaties  does  not  depend  on  the  difference  of  religion     .  ib. 

231  Precaution  to  be  taken  in  wording  treaties          .             .             .  ib. 

232  Subterfuges  in  treaties        ......  234 

233  An  evidently  false  interpretation  inconsistent  with  the  faith  of  treaties  ib. 

234  Faith  tacitly  pledged           .             .             .             .             .             .  ib. 

CHAP.  XVI. 

Of  Securities  given  for  the  Observance  of  Treaties. 

235  Guaranty  .  .  .  .  .  .  .235 

236  It  gives  the  guarantee  no  right  to  interfere  unasked  in  the  execution 

of  a  treaty    .......  236 

237  Nature  of  the  obligation  it  imposes  ....     ib. 

238  The  guaranty  cannot  impair  the  rights  of  a  third  party              .  ib. 

239  Duration  of  the  guaranty    ......  237 

240  Treaties  with  surety      ......  ib. 

241  Pawns,  securities,  and  mortgages    .             .             .             .  .     ib. 

242  A  nation's  right  over  what  she  holds  as  a  pledge            .         -    .  v      ib. 

243  How  she  is  obliged  to  restore  it                    .             .        ':•    .  .238 

244  How  she  may  appropriate  it  to  herself  ....  ib. 

245  Hostages    .                          .             .             .             .             .  .     ib. 

246  What  right  we  have  over  hostages          ....  239 

247  Their  liberty  alone  is  pledged          .             .             .             .  .     ib. 

248  When  they  are  to  be  sent  back               ....  ib. 

249  Whether  they  may  be  detained  on  any  other  account     .             .  ib. 

250  They  may  be  detained  for  their  own  actions             .             .  .  240 

251  Of  the  support  of  hostages         .             .             .             .  ib. 


CONTENTS.  XXXV 

Sect.  Page 

252  A  subject  cannot  refuse  to  be  a  hostage       .  .  .  .241 

253  Rank  of  the  hostages     .  .  .....  ib. 

254  They  ought  not  to  make  their  escape  ....     ib. 

255  Whether  a  hostage  who  diea  is  to  be  replaced     .  .  .         242 

256  Substitute  for  a  hostage       .  .  .  .  ib. 

257  Hostage  succeeding  to  the  crown  ....  ib. 

258  The  liability  of  the  hostage  ends  with  the  treaty      .  .  .     ib. 

259  The  violation  of  the  treaty  is  an  injury  done  to  the  hostages       .  ib. 

260  The  fate  of  the  hostage  when  he  who  has  given  him  fails  in  his  en- 

gagements    .  .  .  .  .  ....        243 

261  Right  founded  on  custom    .  .  .  .  .  .     ib. 

CHAP.  XVII. 

Of  the  Interpretation  of  Treaties. 

262  Necessity  of  establishing  rules  of  interpretation        .  .  .  244 

263  First  general  maxim — it  is  not  allowable  to  interpret  what  has  no  need 

of  interpretation  .  .  .  .  .  ib. 

264  Second  general  maxim — if  he  who  could  and  ought  to  have  explained 

himself,  has  not  done  it,  it  is  to  his  own  detriment  .  .  245 

265  Third  general  maxim — neither  of  the  contracting  parties  has  a  right 

to  interpret  the  treaty  according  to  his  own  fancy  .  .     ib. 

266  Fourth  general  maxim — what  is  sufficiently  declared  is  to  be  taken  for 

true         .  .  .  .  .  .  .  .     ib. 

267  "We  ought  to  attend  rather  to  the  words  of  the  person  promising,  than 

to  those  of  the  party  stipulating  ....     ib. 

268  Fifth  general  maxim — the  interpretation  ought  to  be  made  according 

to  certain  rules                .'            .             .             .             .  .  246 

269  The  faith  of  treaties  imposes  an  obligation  to  follow  those  rules  247 

270  General  rule  of  interpretation           .             .             .         .    ,r  '  .     ib. 

271  The  terms  are  to  be  explained  conformably  to  common  usage  .         248 

272  Interpretation  of  ancient  treaties     .             .          .  .-            .  .     ib. 

273  Quibbles  on  words         .           V           .            .'       .-..;  E  ;  .        249 

274  A  rule  on  that  subject         .        , '  .V           v  ..         .  .          .  .     ib. 

275  Mental  reservations       .         '    .             .            \  '      ••  .   -  .           t'j. 

276  Interpretation  of  technical  terms     .             .           • .             .  .     ib. 

277  Terms  whose  signification  admits  of  degrees       .             ,  .        250 

278  Figurative  expressions         .             .        •','  • .           *••           .  ,     ib. 

279  Equivocal  expressions                 .             .             .             .          .  .•         ib. 

280  The  rule  for  these  two  cases          '.          '.    '.    .'./".        .  .251 

281  Not  necessary  to  give  a  term  the  same  sense  everywhere  in  the  same 

deed 252 

282  We  ought  to  reject  every  interpretation  which  leads  to  an  absurdity     ib. 

283  or  which  renders  the  act  null  and  void  of  effect    .  .  253 

284  Obscure  expressions  interpreted  by  others  more  clear  in  the  same 

author    ........  254 

285  Interpretation  founded  on  the  connection  of  the  discourse  .  ib. 

286  Interpretation  drawn  from  the  connection  and  relation  of  the  things 

themselves     .......  255 

287  Interpretation  founded  on  the  reason  of  the  deed      .             .  .  256 

288  Where  many  reasons  have  concurred  to  determine  the  will         .  ib. 

289  What  constitutes  a  sufficient  reason  for  an  act  of  the  will  .  257 


XXXVI  CONTENTS. 

Sect.  Page 

290  Extensive  interpretation  founded  on  the  reason  of  the  act    .  .  257 

291  Frauds  tending  to  elude  laws  or  promises  .  .  .258 

292  Restrictive  interpretation    ......  259 

293  Its  use,  in  order  to  avoid  falling  into  absurdities,  or  into  what  is  un- 

lawful    .  .  .  .  .  .  .  .     ib. 

294  or  what  is  too  severe  and  burthensome  .  .         260 

295  How  it  ought  to  restrict  the  signification  agreeably  to  the  subject          ib. 

296  How  a  change  happening  in  the  state  of  things  may  form  an  exception  261 

297  Interpretation  of  a  deed  in  unforeseen  cases         .  .  .         262 

298  Reasons  arising  from  the  possibility,  and  not  the  existence  of  a  thing     ib. 

299  Expressions  susceptible  of  an  extensive  and  a  limited  sense         .         263 

300  Things  favourable,  and  things  odious  ....     ib. 

301  What  tends  to  the  common  advantage,  and  to  equality,  is  favourable  : 

the  contrary  is  odious      ......  264 

302  What  is  useful  to  human  society,  is  favourable  :  the  contrary  is  odious  265 

303  Whatever  contains  a  penalty  is  odious         ....  ib. 

304  Whatever  renders  a  deed  void  is  odious               .             .             .  ib. 

305  Whatever  tends  to  change  the  present  state  of  things,  is  odious :  the 

contrary  is  favourable             .             .             .             .  ib. 

306  Things  of  a  mixed  nature                 .....  266 

307  Interpretation  of  favourable  things         ....  ib. 

308  Interpretation  of  odious  things         .....  267 

309  Examples          ....  268 

310  How  we  ought  to  interpret  deeds  of  pure  liberality               .             .  270 

311  Collision  of  laws  or  treaties        .....  271 

312  First  rule  in  cases  of  collision          .            .            .            .  ib. 

313  Second  rule       .......  ib. 

314  Third  rule               .             .             .             .             .             .             .  ib. 

315  Fourth  rule       .......  272 

316  Fifth  rule               .            .                         .            .            .            .  ib. 

317  Sixth  rule 273 

318  Seventh  rule           .  ~         .            .            .                     *    .            .  ib. 

319  Eighth  rule  .  .  .  .  .  .274 

320  Ninth  rule ib. 

321  Tenth  rule        ....                         .  ib. 

322  General  remark  on  the  manner  of  observing  all  the  preceding  rules  ib. 

CHAP.  XVIH. 

Of  the  Mode  of  terminating  Disputes  between  Nations. 

323  General  direction  on  this  subject     .....  274 

324  Every  nation  is  bound  to  give  satisfaction  respecting  the  just  com- 

plaints of  another  ......  275 

325  How  nations  may  abandon  their  rights  and  just  complaints         .  «.      ib. 

326  Means  suggested  by  the  law  of  nature  for  terminating  their  disputes : 

amicable  accommodation         .             .             .             .    ,  276 

327  Compromise            .             .             .             .;,...             .  .     ib. 

328  Mediation          .......  ib. 

329  Arbitration             .            .            .            .".",«  .  277 

330  Conferences  and  congresses            .....  278 

331  Distinction  to  be  made  between  evident  and  doubtful  cases  .     ib. 

332  Essential  rights,  and  those  of  less  importance     .           * .            .  279 


CONTENTS.  XXXV11 

Sect.  Page 

333  How  we  acquire  a  right  of  recurring  to  force  in  a  doubtful  case        .  280 

334  and  even  without  attempting  other  measures               .  ib. 

335  Voluntary  law  of  nations  on  that  subject     ....  ib. 

336  Equitable  conditions  to  be  offered           ....  281 

337  Possessor's  right  in  doubtful  cases                ....  282 

338  How  reparation  of  an  injury  is  to  be  sought       .             .             .  ib. 

339  Retaliation              .                          .....  ib. 

340  Various  modes  of  punishing,  without  having  recourse  to  arms     .  283 

341  Retortion                .             .             .             .             .             .             .  ib. 

342  Reprisals           .......  ib. 

343  What  is  required  to  render  them  lawful       ....  284 

344  Upon  what  effects  reprisals  are  made      .             .             .  ib. 

345  The  state  is  bound  to  compensate  those  who  suffer  by  reprisals          .  285 

346  The  sovereign  alone  can  order  reprisals                                         .  ib. 

347  Reprisals  against  a  nation  for  actions  of  her  subjects,  and  in  favour 

of  the  injured  subjects    ......  ib. 

348  but  not  in  favour  of  foreigners            .             .             .  ib. 

349  Those  who  have  given  cause  for  reprisals  are  bound  to  indemnify 

those  who  suffer  by  them             .             .             .             .             .  286 

350  What  may  be  deemed  a  refusal  to  do  justice       .             .             .  287 

351  Subjects  arrested  by  way  of  reprisals            .             .             .             .  ib. 

352  Our  right  against  those  who  oppose  reprisals      .          ,; ,  ;  *        .  288 

353  Just  reprisals  do  not  afford  a  just  cause  for  war       .             .             .  ib. 

354  How  we  ought  to  confine  ourselves  to  reprisals,  or  at  length  proceed 

to  hostilities  ib. 


BOOK  III. 

OF  WAR. 

CHAP.  I. 

Of  War, — its  different  Kinds, — and  the  Right  of  making  War. 

1  Definition  of  war    ....  .  .  .  .  .  291 

2  Public  war  .  .  .     ,        .  .  .  .  ib. 

3  Right  of  making  war  .  .  .  .  .  .     ib. 

4  It  belongs  only  to  the  sovereign  power      .  .  .  . ».      292 

5  Defensive  and  offensive  war  .....  293 

CHAP.  II. 

Of  the  Instruments  of  War, — the  Raising  of  Troops,  &c. — their  Commanders, 
or  the  Subordinate  Powers  in  War. 

6  Instruments  of  war     .......  293 

7  Right  of  levying  troops     ......         294 

8  Obligation  of  the  citizens  or  subjects  .....     ib.+ 

9  Enlisting  or  raising  of  troops         .  .  .  .  ib. 


XXXV111  CONTENTS. 

Sect.  Page 

10  Whether  there  be  any  exemptions  from  carrying  arms           .  .  294 

11  Soldiers'  pay  and  quarters            .....  296 

12  Hospitals  for  invalids            .             .             .             .             .  .     ib. 

13  Mercenary  soldiers           ......  297 

14  Rule  to  be  observed  in  their  enlistment         ....  298 

15  Enlisting  in  foreign  countries      .....  16. 

16  Obligation  of  soldiers            .            .           ».            .            •  •  299 

17  Military  laws      .......  ib. 

18  Military  discipline     .                                      .             .  .     ib. 

19  Subordinate  powers  in  war           .             .             .             .             .  ib. 

20  How  their  promises  bind  the  sovereign                                     .  .  300 

21  In  what  cases  their  promises  bind  only  themselves            .             .  ib. 

22  Their  assumption  of  an  authority  which  they  do  not  possess  .     ib. 

23  How  they  bind  their  inferiors    .....  301 


CHAP.  JfL. 

Of  the  Just  Causes  of  War. 

24  War  never  to  be  undertaken  without  very  cogent  reasons       .  .  301 

25  Justificatory  reasons,  and  motives  for  making  war  .  .  ib. 

26  What  is  in  general  a  just  cause  of  war  ....  302 

27  What  war  is  unjust         ......  ib. 

28  The  object  of  war     .....  .     ib. 

29  Both  justificatory  reasons  and  proper  motives  requisite  in  undertaking 

a  war  .  .  .  .  .  .  .303 

30  Proper  motives — vicious  motives       .  .  .  .  ib. 

31  War  undertaken  upon  just  grounds,  but  from  vicious  motives       .  ib. 

32  Pretexts       ........  304 

33  War  undertaken  merely  for  advantage     .  ib. 

34  Nations  who  make  war  without  reason  or  apparent  motives    .  .  305 

35  How  defensive  war  is  just  or  unjust        ....  ib. 

36  How  it  may  become  just  against  an  offensive  war  which  was  originally 

just        .  .  .  .  .  .  .  .     ib. 

37  How  an  offensive  war  is  just  in  an  evident  cause  .  .  ib. 

38  in  a  doubtful  cause  .  .  .  .  .306 

39  War  cannot  be  just  on  both  sides  ....          ib. 

40  Sometimes  reputed  lawful     .  .  .  .  .  .     ib. 

41  War  undertaken  to  punish  a  nation          ....         307 

42  Whether  the  aggrandizement  of  a  neighbouring  power  can  authorize 

a  war  against  him  ...  .  .     ib. 

43  Alone,  and  of  itself,  it  cannot  give  a  right  to  attack  him  .         308 

44  How  the  appearances  of  danger  give  that  right          .  '.  .  309 

45  Anothet  case  more  evident  .  .  .  .  .310 

46  Other  allowable  means  of  defence  against  a  formidable  power  .  311 

47  Political  equilibrium       ......  ib. 

48  Ways  of  maintaining  it  .  .  .  •  .312 

49  How  he  that  destroys  the  equilibrium  may  be  restrained,  or  even 

weakened      .  .  .  .  ...  .  ib. 

,  50  Behaviour  allowable  towards  a  neighbour  preparing  for  war   .  .313 


CONTENTS.  XXXIX 

CHAP.  IV. 

Of  the  Declaration  of  War, — and  of  War  in  due  Form. 

Sect.  Page 

51  Declaration  of  war : — necessity  thereof          .  .  .  .315 

52  What  it  is  to  contain       .  .  .  .  .  ib. 

53  It  is  simple  or  conditional     .  .  .  .  .  .316 

54  The  right  to  make  war  ceases  on  the  offer  of  equitable  conditions  ib. 

55  Formalities  of  a  declaration  of  war  ....     ib. 

56  Other  reasons  for  the  necessity  of  its  publication  .  .  ib. 

57  Defensive  war  requires  no  declaration  ....  317 

58  When  it  may  be  omitted  in  an  offensive  war        .  .  .  ib. 

59  It  is  not  to  be  omitted  by  way  of  retaliation  .  .  .     ib. 

60  Time  of  the  declaration  .  .  .  .  ib. 

61  Duty  of  the  inhabitants  on  a  foreign  army's  entering  a  country  before 

a  declaration  of  war         .  .  .  .  .  .     ib. 

62  Commencement  of  hostilities       .....         318 

63  Conduct  to  be  observed  towards  the  enemy's  subjects  who  are  in  the 

country  at  the  time  of  the  declaration  of  war       .  .  .     ib. 

64  Publication  of  the  war,  and  manifestoes  .  .  .  ib. 
v    65  Decorum  and  moderation  to  be  observed  in  the  manifestoes                 .  319 

66  What  is  a  lawful  war  in  due  form  .  .  »  .  ib. 

67  It  is  to  be  distinguished  from  informal  and  unlawful  war       .  .  320 

68  Grounds  of  this  distinction  ib. 


CHAP.  V. 

Of  the  Enemy ,  and  of  Things  belonging  to  the  Enemy. 

69  Who  is  an  enemy     .  .  '     .    .  *         V  '"        .  .  .321 

70  All  the  subjects  of  the  two  states  at  war  are  enemies       .  .  ib. 
71 and  continue  to  be  enemies  in  all  places    .             .             .     ib. 

72  Whether  women  and  children  are  to  be  accounted  enemies  .  ib. 

73  Things  belonging  to  an  enemy  .....  322 

74  continue  such  everywhere        ....  ib. 

75  Neutral  things  found  with  an  enemy  ....     ib. 

76  Lands  possessed  by  foreigners  in  an  enemy's  country        .  .  ib. 

77  Things  due  to  the  enemy  by  a  third  party     .  .  .  .     ib. 


CHAP^VI. 

Of  the  Enemy's  Allies, — of  Warlike  Associations, — of  Auxiliaries  and  Sub 

sidies. 

78  Treaties  relative  to  war         .  .  .  .  .  .323 

79  Defensive  and  offensive  alliances  .  .  .  ib. 

80  Difference  between  warlike  alliances  and  defensive  treaties     .  .  324 

81  Auxiliary  troops  ......  ib. 

82  Subsidies      .  .  .  .  .  .  .  .     ib. 

83  When  a  nation  is  authorized  to  assist  another       .             .             .  ib. 
84 and  to  make  alliances  for  war                                  .  .     ib. 


Xl  CONTENTS. 

Sect.  Page 

85  Alliances  made  with  a  nation  actually  engaged  in  war          .  .  325 

86  Tacit  clause  in  every  warlike  alliance                  .             .             .  ib. 

87  To  refuse  succours  for  an  unjust  war  is  no  breach  of  alliance  .  326 

88  What  the  casus  fcederis  is          .....  ib. 

89  It  never  takes  place  in  an  unjust  war  ....     ib. 

90  How  it  exists  in  a  defensive  war             .             .             .  ib. 
91 and  in  a  treaty  of  a  guaranty      .             .             .  ib. 

92  The  succour  is  not  due  under  an  inability  to  furnish  it,  or  when  the 

public  safety  would  be  exposed  ....  ib. 

93  Other  cases : — two  of  the  parties  in  an  alliance  coming  to  a  rupture     327 

94  Refusal  of  the  succours  due  in  virtue  of  an  alliance         .  .  ib. 

95  The  enemy's  associates        .  .  .  .,         .  .328 

96  Those  who  make  a  common  cause  with  the  enemy  are  his  associates     ib. 

97  and  those  who  assist  him,  without  being  obliged  to  it  by 

treaties  .  .  .  .  .  .  .  ib. 

98 or  who  are  in  an  offensive  alliance  with  him  .         329 

99  How  a  defensive  alliance  associates  with  the  enemy  .  .     ib. 

100  Another  case     .......  ib. 

101  In  what  case  it  doee  not  produce  the  same  effect       .  .  .  330 

102  Whether  it  be  necessary  to  declare  war  against  the  enemy's  associates  331 


CHAP.  VII. 

Of  Neutrality, — and  the  Passage  of  Troops  through  a  Neutral  Country. 

103  Neutral  nations       .  .  .'<        .  .    ,        .  .  .332 

104  Conduct  to  be  pursued  by  a  neutral  nation         .  .  .  ib. 

105  An  ally  may  furnish  the  succour  due  from  him,  and  remain  neuter  333 

106  Right  of  remaining  neuter          .  .  .  .  .  ib. 

107  Treaties  of  neutrality  .  .  .  .  .  .  ib. 

108  Additional  reasons  for  making  those  treaties       .  .  .  334 

109  Foundation  of  the  rules  of  neutrality  ....  ib. 

110  How  levies  may  be  allowed,  money  lent,  and  every  kind  of  things 

sold,  without  a  breach  of  neutrality  .  .  .  ib. 

111  Trade  of  neutral  nations  with  those  which  are  at  war  .  .  335 

112  Contraband  goods          ......  336 

113  Whether  such  goods  may  be  confiscated       ....  337 

114  Searching  neutral  ships  .  .  .  .  .339 

115  Enemy's  property  on  board  a  neutral  ship   ....  ib. 

116  Neutral  property  on  board  an  enemy's  ship        .         ...     ..    .   .  ib. 

117  Trade  with  a  besieged  town  .  .  .  .  .  ib. 

118  Impartial  offices  of  neutrals        ."  .  .  .  .  340 

119  Passage  of  troops  through  a  neutral  country  .  .  .  ib. 

120  Passage  to  be  asked       .  .  .  .  ib. 

121  It  may  be  refused  for  good  reasons          '_  .        ^,        ,vf,,  .a        .  341 

122  In  what  case  it  may  be  forced    .  .  .        ,  •   .    vl        .  ib. 

123  The  fear  of  danger  authorizes  a  refusal         ....  342 
124 or  a  demand  of  every  reasonable  security        .             .  ib. 

125  Whether  always  necessary  to  give  every  kind  of  security  required    .  ib. 

126  Equality  to  be  observed  towards  both  parties,  as  to  the  passage  343 

127  No  complaint  lies  against  a  neutral  state  for  granting  a  passage        .  ib. 


CONTENTS.  Xli 

Sect.  Page 

128  That  state  may  refuse  it  from  fear  of  the  resentment  of  the  opposite 

party      .                          .                                       ...  343 

129 and  lest  her  country  should  become  the  theatre  of  war  ib. 

130  What  is  included  in  the  grant  of  passage     .             .             .             .  344 

131  Safety  of  the  passage     .             .             .             .             .  ib. 

132  No  hostility  to  be  committed  in  a  neutral  country    .             .             .  ib. 

133  Neutral  country  not  to  afford  a  retreat  to  troops,  that  they  may  again 

attack  their  enemies  .  .  .         345 

134  Conduct  to  be  pursued  by  troops  passing  through  a  neutral  country      ib. 

135  A  passage  may  be  refused  for  a  war  evidently  unjust  .  .     ib. 


CHAP.  VIII. 

Of  the  Sights  of  Nations  in  War, — and  first,  of  what  we  have  a  Right  to  do, 
and  what  we  are  allowed  to  do,  to  the  Enemy's  Person  in  a  just  War. 

136  General  principle  of  the  rights  against  an  enemy  in  a  just  war          .  346 

137  Difference  between  what  we  have  a  right  to  do,  and  what  is  barely 

allowed  to  be  done  with  impunity  between  enemies     .  .  ib. 

138  The  right  to  weaken  an  enemy  by  every  justifiable  method  .  347 

139  The  right  over  the  enemy's  person         ....  ib. 

140  Limits  of  that  right : — an  enemy  not  to  be  killed  after  ceasing  to  resist    ib. 

141  A  particular  case  in  which  quarter  may  be  refused         .  .         348 

142  Reprisals    .  .  .  .     '        .  .  .  .     ib. 

143  Whether  a  governor  of  a  town  can  be  punished  with  death  for  an 

obstinate  defence        ......         349 

144  Fugitives  and  deserters        ......  351 

145  Women,  children,  the  aged,  and  sick     ....  ib. 

146  Clergy,  men  of  letters,  &c.  .  .  .' ^  .  352 

147  Peasants,  and,  in  general,  all  who  do  not  carry  arms       .        '     .  ib. 

148  The  right  of  making  prisoners  of  war  .        ,.»...        .  .  353 

149  A  prisoner  of  war  not  to  be  put  to  death  .          '••„  .         354 

150  How  prisoners  of  war  are  to  be  treated        .  .  ,  -..        .     ib. 

151  Whether  prisoners,  who  cannot  be  kept  or  fed,  may  be  put  to  death   355 

152  Whether  prisoners  of  war  may  be  made  slaves         .  .  .  356 

153  Exchange  and  ransom  of  prisoners         ....         357 

154  The  state  is  bound  to  procure  their  release  .  .  .     ib. 

155  Whether  an  enemy  may  lawfully  be  assassinated  or  poisoned  .  358 

156  Whether  poisoned  weapons  may  be  used  in  war  .  .         361 

157  Whether  springs  may  be  poisoned  .         ••"""*'•          .     ib. 

158  Disposition  to  be  entertained  towards  an  enemy  .  .         362 

159  Tenderness  for  the  person  of  a  king  who  is  in  arms  against  us        ^  .  363 


CHAP.  IX. 

Of  the  Right  of  War,  with  Respect  to  Things  belonging  to  the  Enemy. 

160  Principles  of  the  right  over  things  belonging  to  the  enemy  .  364 

161  The  right  of  seizing  them  .  .  .  .  ib. 

162  What  is  taken  from  the  enemy  by  way  of  penalty  .  .     ib. 

163  What  is  withheld  from  him,  in  order  to  oblige  him  to  give  just  satis- 

faction .......        365 

6  D2 


Xlll  CONTENTS. 

Sect.  Page 

164  Booty 365 

165  Contribution     .......  366 

166  Waste  and  destruction         .             .             .             .             .  .     ib. 

167  Ravaging  and  burning                .....  367 

168  What  things  are  to  be  spared          .            .            .            .  .368 

169  Bombarding  towns         ......  ib. 

170  Demolition  of  fortresses      .            .                         .            .  .  369 

171  Safeguards        .......  ib, 

172  General  rule  of  moderation  respecting  the  evil  which  may  be  done 

to  an  enemy        .             .             .             .             .             .  ib. 

173  Rule  of  the  voluntary  law  of  nations  on  the  same  subject            .  ib. 


CHAP.  X. 

Of  Faith  between  Enemies, — of  Stratagems,  Artifices  in  War,  Spies,  and 
some  other  Practices. 

174  Faith  to  be  sacred  between  enemies  ....  371 

175  What  treaties  are  to  be  observed  between  enemies          .  .        372 

176  On  what  occasions  they  may  be  broken        ....     ib. 

177  Lies     .  .  .  .  .  .  .  .          ib. 

178  Stratagems  and  artifices  in  war        .....  373 

179  Spies 375 

180  Clandestine  seduction  of  the  enemy's  people  .  .  .  376 

181  Whether  the  offers  of  a  traitor  may  be  accepted  .  .        377 

182  Deceitful  intelligence          .  .  .  .  .  .     ib. 


CHAP.  XI. 

Of  the  Sovereign  who  wages  an  unjust  war. 

183  An  unjust  war  gives  no  right  whatever        .             .             .  %           378 

184  Great  guilt  of  the  sovereign  who  undertakes  it                .  .           ib. 

185  His  obligations       .......  379 

186  Difficulty  of  repairing  the  injury  he  has  done     .             .  .           ib. 

187  Whether  the  nation  and  the  military  are  bound  to  any  thing  .  380 


CHAP.  XH. 

Of  the  Voluntary  Law  of  Nations,  as  it  regards  the  Effects  of  Regular  Warfare, 
independently  of  the  Justice  of  the  Cause. 

188  Nations  not  rigidly  to  enforce  the  law  of  nature  against  each  other      381 

189  Why  they  are  bound  to  admit  the  voluntary  law  of  nations         .  ib. 

190  Regular  war,  as  to  its  effects,  is  to  be  accounted  just  on  both  sides      382 

191  Whatever  is  permitted  to  one  party,  is  so  to  the  other  .  ib. 

192  The  voluntary  law  gives  no  more  than  impunity  to  him  who  wages 

an  unjust  war     .......  383 


CONTENTS.  Xliii 


CHAP.  xm. 

Of  Acquisitions  by  War,  and  particularly  of  Conquests. 

Seet.  Pag« 

193  War  a  mode  of  acquisition  .....  384 

194  Measure  of  the  right  it  gives     .  .  .  .  ib. 

195  Rules  of  the  voluntary  law  of  nations  .  .  .  .385 
19Q  Acquisition  of  movable  property             ....  ib. 

197  Acquisition  of  immovables, — or  conquest     ....  386 

198  How  to  transfer  them  validly     .  .  .  .         387 

199  Conditions  on  which  a  conquered  town  is  acquired  .  .     ib. 

200  Lands  of  private  persons  .  .  .  .  .         388 

201  Conquest  of  the  whole  state  .  .  • .  .  .     ib. 

202  To  whom  the  conquest  belongs  .  .  .  .391 

203  Whether  we  are  to  set  at  liberty  a  people  whom  the  enemy  had  un- 

justly conquered          ....  .  .  .  .  .     ib. 

CHAP.  XIV. 

Of  the  Right  of  Postliminium. 

204  Definition  of  the  right  of  postliminium         ....  392 

205  Foundation  of  that  right  .  .  .        '    .  ib. 

206  ]Jow  it  takes  effect  ......  393 

207  Whether  it  takes  effect  among  the  allies  .  .  .  ib. 

208  Of  no  validity  in  neutral  nations      .  .  .  .  .     ib. 

209  What  things  are  recoverable  by  that  right          .  .  .         394 

210  Of  those  who  cannot  return  by  the  right  of  postliminium     .  .     ib. 

211  They  enjoy  that  right  when  retaken       ....  ib. 

212  Whether  that  right  extends  to  their  property  alienated  by  the  enemy  395 

213  Whether  a  nation  that  has  been  entirely  subdued  can  enjoy  the  right 

of  pcstliminium          ......         396 

214  Right  of  postliminium  for  what  is  restored  at  the  peace        .  .  397 
215 and  for  things  ceded  to  the  enemy      .             .             .  ib. 

216  The  right  of  postliminium  does  not  exist  after  a  peace         .  .     ib. 

217  Why  always  in  force  for  prisoners          ....  ib. 

218  They  are  free  even  by  escaping  into  a  neutral  country          .  .     ib. 

219  How  the  rights  and  obligations  of  prisoners  subsist         .             .  398 

220  Testament  of  a  prisoner  of  war         .             .             .             .  .     ib. 

221  Marriage                         ......  ib. 

222  Regulations  established  by  treaty  or  custom,  respecting  postliminium    ib. 

CHAP.  XV. 

Of  the  Right  of  Private  Persons  in  War. 

223  Subjects  cannot  commit  hostilities  without  the  sovereign's  order          399 

224  That  order  may  be  general  or  particular       ....     ib. 

225  Source  of  the  necessity  of  such  an  order  .  .  .  ib. 

226  Why  the  law  of  nations  should  have  adopted  this  rule          .  .     ib. 

227  Precise  meaning  of  the  order     .....         400 
228.  What  may  be  undertaken  by  private  persons,  presuming  on  the 

sovereign's  will          ......  ib. 

229  Privateers  .  .  .  .  .  .  .     ib. 

230  Volunteers       .......        401 


xliv  CONTENTS. 

Sect,  Page 

231  What  soldiers  and  subalterns  may  do  .  .  .  .401 

232  Whether  the  state  is  bound  to  indemnify  the  subjects  for  damages 

sustained  in  war         .....  402 

CHAP.  XVI. 

Of  various  Conventions  made  during  the  Course  of  the  War. 

233  Truce  and  suspension  of  arms          .  .  .  .  404 

234  does  not  terminate  the  war    ....  ib. 

235  A  truce  is  either  partial  or  general  ....     ib. 

236  General  truce  for  many  years  ....  ib. 

237  By  whom  those  agreements  may  be  concluded          .  .  .  405 

238  The  sovereign's  faith  engaged  in  them  .  .  .         406 

239  When  the  truce  begins  to  be  obligatory       ....     ib. 

240  Publication  of  the  truce  .  .  .  .  .  ib. 

241  Subjects  contravening  the  truce       .  .  .  .  .     ib. 

242  Violation  of  the  truce    .  .  .  .  .        407 

243  Stipulation  of  a  penalty  against  the  infractor  , ,  <  .     ib. 

244  Time  of  the  truce  .  .  .  .  .  .  ib. 

245  Effects  of  a  truce  :  what  is  allowed  or  not,  during  its  continuance. — 

First  rule — Each  party  may  do  at  home  what  they  have  a  right  to 

do  in  time  of  peace          ......  408 

246  Second  rule — not  to  take  advantage  of  the  truce  in  doing  what  hos- 

tilities would  have  prevented  ....         409 

247  for  instance,  continuing  the  works  of  a  siege,  or  repairing 

breaches  .  .  .  .  .  .  .     ib. 

248 or  introducing  succours          ....  ib. 

249  Distinction  of  a  particular  case        .....  410 

250  Retreat  of  an  army  during  a  suspension  of  hostilities      .             .  ib. 

251  Third  rule — Nothing  to  be  attempted  in  contested  places,  but  every 

thing  to  be  left  as  it  was  .  .  .  .  .411 

252  Places  quitted  or  neglected  by  the  enemy  .  .  .  ib. 

253  Subjects  inclined  to  revolt  against  their  prince  not  to  be  received 

during  the  truce  .  .  .  .  .     ib. 

254  much  less  to  be  solicited  to  treason  .  .  ib. 

255  Persons  or  effects  of  enemies  not  to  be  seized  during  the  truce          .  ib. 

256  Right  of  postliminium  during  the  truce  .  .  .  ib. 

257  Intercourse  allowed  during  a  truce  ....  ib. 

258  Persons  detained  by  unsurmountable  obstacles  after  the  expiration  of 

the  truce       .  .  .  .  .  .         412 

259  Particular  conditions  added  to  truces  .  .          ' " .'   :         .     ib. 

260  At  the  expiration  of  the  truce  the  war  recommences  without  any  new 

declaration    .             .             .             .             .             .  ib. 

261  Capitulations ;  and  by  whom  they  may  be  concluded  .             .     ib. 

262  Clauses  contained  in  them          .                          .         -  ' .  .         413 

263  Observance  of  capitulations,  and  its  utility               .  ,             .  414 

264  Promises  made  to  the  enemy  by  individuals       .             .  .           ib. 

CHAP.  XVII. 

Of  Safe-conducts  and  Passports,  and  Questions  on  the  Hansom  of  Prisoners 
of  War. 

265  Nature  of  safe-conducts  and  passports  .  .  .  .  416 

266  From  what  authority  they  emanate        .  .  *~<        .  .  ib. 

267  Not  transferable  from  one  person  to  another  .  .  .    ib. 


CONTENTS.  xlv 

Sect.  Page 

268  Extent  of  the  promised  security      .....  416 

269  How  to  judge  of  the  right  derived  from  a  safe  conduct   .             .  417 

270  Whether  it  includes  baggage  and  domestics              .             .  .     ib. 

271  Safe  conduct  granted  to  the  father  does  not  include  his  family    .  ib. 

272  Safe  conduct  given  in  general  to  any  one  and  his  retinue      .  .     ib. 

273  Term  of  the  safe  conduct           .....  418 

274  A  person  unavoidably  detained  beyond  the  term      .             .  ib 

275  The  safe  conduct  does  not  expire  at  the  death  of  him  who  gave  it  ib. 

276  How  it  may  be  revoked       .             .             .             .             .  ib. 

277  Safe  conduct,  with  the  clause  "  for  such  time  as  we  shall  think  fit"       ib. 

278  Conventions  relating  to  the  ransom  of  prisoners       .             .  .  419 

279  The  right  of  demanding  a  ransom  may  be  transferred     .             .  ib. 

280  What  may  annul  the  convention  made  for  the  rate  of  the  ransom  .     ib. 

281  A  prisoner  dying  before  payment  of  ransom       .              .              .  ib. 

282  Prisoner  released  on  condition  of  procuring  the  release  of  another  .  420 

283  Prisoner  retaken  before  he  has  paid  his  former  ransom                 .  ib. 

284  Prisoner  rescued  before  he  has  received  his  liberty                .  .     ib. 

285  Whether  the  things  which  a  prisoner  has  found  means  to  conceal, 

belong  to  him             ......  421 

286  Hostage  given  for  the  release  of  a  prisoner              .            .  .     ib. 

CHAP.  xvin. 

Of  Civil  War. 

287  Foundation  of  the  sovereign's  rights  against  the  rebels          .  .  421 

288  Who  are  rebels              ......  422 

289  Popular  commotion,  insurrection,  sedition   ....     ib. 

290  How  the  sovereign  is  to  suppress  them                .             .             .  ib. 

291  He  is  bound  to  perform  the  promises  he  has  made  to  the  rebels  .  423 

292  Civil  war 424 

293  A  civil  war  produces  two  independent  parties           .             .  .425 

294  They  are  to  observe  the  common  laws  of  war     .             .             .  ib. 

295  The  effects  of  civil  war  distinguished  according  to  cases       .  .  426 

296  Conduct  to  be  pursued  by  foreign  nations           .             .             .  427 


BOOK  IV. 

OF  THE  RESTORATION  OF  PEACE ;  AND  OF  EMBASSIES. 

CHAP.  I. 

Of  Peace,  and  the  Obligation  to  cultivate  it. 

1  What  peace  is  .......  429 

2  Obligation  of  cultivating  it  .....         430 

3  The  sovereign's  obligation  in  that  respect        ....     ib. 

4  Extent  of  that  duty  ......  ib. 

5  Disturbers  of  the  public  peace  .  .  .  .  .431 

6  How  far  war  may  be  continued      .  .  .  .  .  ib. 

7  Peace  the  end  of  war  .  .  ,  .  .  .  432 

8  General  effects  of  peace     .  .  .  .  ib. 


Xlvi  CONTENTS. 

CHAP.  II. 

Treaties  of  Peace. 

Sect.  Pag* 

9  Definition  of  a  treaty  of  peace  .....  432 

10  By  whom  it  may  be  concluded     .  .  .  .  .  ib. 

11  Alienations  nnde  by  a  treaty  of  peace        ^  .  .  .  .  433 

12  How  the  sovereign  may,  in  a  treaty,  dispose  of  what  concerns  individuals  435 

13  Whether  a  king  who  is  a  prisoner  of  war  can  make  a  peace    .  .     ib. 

14  Whether  peace  can  be  made  with  an  usurper        .  .  .         436 

15  Allies  included  in  the  treaty  of  peace  .  *  .  .     ib. 

16  Associates  to  treat,  each  for  himself        ....         437 

17  Mediation    .  .  .  .  .  .  .     ib. 

18  On  what  footing  peace  may  be  concluded  .  .  .  ib. 

19  General  effect  of  the  treaty  of  peace  ....  438 

20  Amnesty  ......        439 

21  Things  not  mentioned  in  the  treaty  ....     ib. 

22  Things  not  included  in  the  compromise  or  amnesty          .  .  ib. 

23  Former  treaties,  mentioned  or  confirmed  in  the  new,  are  a  part  of  it      440 

CHAP.  III. 

Of  the  Execution  of  the  Treaty  of  Peace. 

24  When  the  obligation  of  the  treaty  commences  .  .  .  440 

25  Publication  of  the  peace  .  .  .  .  ib. 

26  Time  of  the  execution  ......  441 

27  A  lawful  excuse  to  be  admitted  ....  ib. 

28  The  promise  is  void  when  the  party  to  whom  it  was  made  has  himself 

hindered  the  performance  of  it    .  .  .  .  .     ib. 

29  Cessation  of  contributions  .....         442 

30  Products  of  the  thing  restored  or  ceded          ....     ib. 

31  In  what  condition  things  are  to  be  restored  .  .  .  ib. 

32  The  interpretation  of  a  treaty  of  peace  is  to  be  against  the  superior  party  443 

33  Names  of  ceded  countries  .  .  .  .  ib. 

34  Restoration  not  to  be  understood  of  those  who  have  voluntarily  given 

themselves  up  .  .  .  .  .  .  444 

CHAP.  IV. 

Of  the  Observance  and  Breach  of  the  Treaty  of  Peace. 

35  The  treaty  of  peace  binds  the  nation  and  successors  .             .  .  444 

36  It  is  to  be  faithfully  observed      .             .             .             .  ib. 

37  The  plea  of  fear  or  force  does  not  dispense  with  the  observance  .  445 

38  How  many  ways  a  treaty  of  peace  may  be  broken         '    .  .         446 

39  by  a  conduct  contrary  to  the  nature  of  every  treaty  of  peace     ib. 

40  To  take  up  arms  for  a  fresh  cause  is  no  breach  of  the  treaty  of  peace      ib. 

41  A  subsequent  alliance  with  an  enemy  is  likewise  no  breach  of  the  treaty  447 

42  Why  a  distinction  is  to  be  made  between  a  new  war  and  a  breach  of 

the  treaty            .             .             .             .             .             .              .  ib. 

43  Justifiable  self-defence  is  no  breach  of  the  treaty               .             .  448 

44  Causes  of  rupture  on  account  of  allies            ....  449 

45  The  treaty  is  broken  by  what  is  contrary  to  its  particular  nature  ib. 

46  by  the  violation  of  any  article       ....     ib. 

47  The  violation  of  a  single  article  breaks  the  whole  treaty   .  .          ib. 


CONTENTS.  Xlvii 

Sect,  Page 

48  Whether  a  distinction  may  here  be  made  between  the  more  and  the  less 

important  articles             ......  450 

49  Penalty  annexed  to  the  violation  of  an  article      .             .             .  ib. 

50  Studied  delays          .             .             .             .             .                          .  ib. 

51  Unsurmountable  impediments      .              .             .             .             .  ib. 

52  Infractions  of  the  treaty  of  peace  by  the  subjects        .             .             .  451 
53 or  by  allies     ......  ib. 

54  Right  of  the  offended  party  against  him  who  has  violated  the  treaty     452 

CHAP.  V. 

Of  the  Right  of  Embassy,  or  the  Right  of  sending  and  receiving  Public  Ministers. 

55  It  is  necessary  that  nations  be  enabled  to  treat  and  communicate  together  452 

56  They  do  that  by  the  agency  of  public  ministers          .  .  .  453 

57  Every  sovereign  state  has  a  right  to  send  and  receive  public  ministers     ib. 

58  An  unequal  alliance,  or  a  treaty  of  protection,  does  not  take  away  that 

right       .              .              .              .              .             .              .  .     ib. 

59  Right  of  the  princes  and  states  of  the  empire  in  that  respect     •    .  ib. 

60  Cities  that  have  the  right  of  banner                .             .             .  .  454 

61  Ministers  of  viceroys        .             .             .             .             .        '    .  455 

62  Ministers  of  the  nation  or  of  the  regents  during  an  interregnum  .     ib. 

63  Sovereign  molesting  another  in  the  exercise  of  the  right  of  embassy  ib. 

64  What  is  allowable  in  that  respect  in  time  of  war               .             .  ib. 

65  The  minister  of  a  friendly  power  is  to  be  received      .             .  .  456 

66  Resident  ministers           ......  ib. 

67  Admission  of  an  enemy's  ministers                 ....  457 

68  Whether  ministers  may  be  received  from  or  sent  to  an  usurper     .  ib. 

CHAP.  VI. 

Of  the  several  Orders  of  Public  Ministers, — of  the  Representative  Character, 
and  of  the  Honours  due  to  Ministers. 

69  Origin  of  the  several  orders  of  public  ministers          .             .  .  459 

70  Representative  character              .             .             .             .             .  ib. 

71  Ambassadors             .             .             .             .             .             .  .     ib. 

72  Envoys               .......  460 

73  Residents     .             .             .             .             .             .             .  .     ib. 

74  Ministers             .......  ib. 

75  Consuls,  agents,  deputies,  commissioners,  &c.  461 

76  Credentials          .             .              .             .             .             .  ib. 

77  Instructions              .             .             .             .             .             .  .     ib. 

78  Right  of  sending  ambassadors      .             .             .             .  ib. 

79  Honours  due  to  ambassadors              .             .             .             .  ".  462 

CHAP.  VII. 

Of  the  Rights,  Privileges,  and  Immunities  of  Ambassadors,  and  other  Public 
Ministers. 

80  Respect  due  to  public  ministers         .....  464 

81  Their  persons  sacred  and  inviolable          ....  ib. 

82  Particular  protection  due  to  them     .....  465 

83  When  it  commences        ......        466 

84  What  is  due  to  them  in  the  countries  through  which  they  pass          .     ib. 


Xlviii  CONTENTS. 

Sect.  Page 

85  Ambassadors  going  to  an  enemy's  country  ....  467 

86  Embassies  between  enemies       .              .             .             .             .  ib. 

87  Heralds,  trumpeters,  and  drummers             ....  468 

88  Ministers,  trumpeters,  &c.,  to  be  respected  even  in  a  civil  war    .  ib. 

89  Sometimes  they  may  be  refused  admittance              .             .             .  469 

90  Every  thing  which  has  the  appearance  of  insult  to  them  must  be  avoided  ib. 

91  By  and  to  whom  they  may  be  sent          •»   .             .             .             .  470 

92  Independence  of  foreign  ministers          ....  ib. 

93  How  the  foreign  minister  is  to  behave         ....  472 

94  How  he  may  be  punished  for  ordinary  transgressions      .             .  475 

95  for  faults  committed  against  the  prince  .  .     ib. 

96  Right  of  ordering  away  an  ambassador  who  is  guilty  or  justly  suspected    ib. 

97  Right  of  repressing  him  by  force,  if  he  behaves  as  an  enemy  .  476 

98  Ambassador  forming  dangerous  plots  and  conspiracies    .  .  ib. 

99  What  may  be  done  to  him  according  to  the  exigency  of  the  case      .  478 

100  Ambassador  attempting  against  the  sovereign's  life         .  .         479 

101  Two  remarkable  instances  respecting  the  immunities  of  public  ministers  480 

102  Whether  reprisals  may  be  made  on  an  ambassador          .  .         481 

103  Agreement  of  nations  concerning  the  privileges  of  ambassadors         .  482 

104  Free  exercise  of  religion  .....         483 

105  Whether  an  ambassador  be  exempted  from  all  imposts         .  .  484 

106  Obligation  founded  on  use  and  custom  .  .  .         485 

107  A  minister  whose  character  is  not  public     ....     ib. 

108  A  sovereign  in  a  foreign  country  .  .  .  486 

109  Deputies  to  the  states          ......  487 

CHAP.  VIII. 

Of  the  Judge  of  Ambassadors  in  Civil  Cases. 

110  The  ambassador  is  exempt  from  the  civil  jurisdiction  of  the  country 

where  he  resides  .  .  .  .  .  .488 

111  How  he  may  voluntarily  subject  himself  to  it     .  .  .         489 

112  A  minister  who  is  a  subject  of  the  state  where  he  is  employed          .  490 

113  Immunity  of  the  minister  extends  to  his  property  .  .         491 

114  The  exemption  cannot  extend  to  effects  belonging  to  any  trade  the 

minister  may  carry  on     .  .  .  .  .  .  492 

115 nor  to  immovable  property  which  he  possesses  in  the  country  493 

116  How  justice  may  be  obtained  against  an  ambassador  .  .     ib. 

CHAP.  IX. 

Of  the  Ambassador's  House  and  Domestics. 

117  The  ambassador's  house      ......  494 

118  Right  of  asylum  ......         495 

119  Exemption  of  an  ambassador's  carriages      ....  496 

120 of  his  retinue  .....         497 

121  of  his  wife  and  family     .  .  .  .  .     ib. 

122 of  the  secretary  of  the  embassy          .  .  .  ib. 

123 of  the  ambassador's  couriers  and  despatches          .  .  498 

124  The  ambassador's  authority  over  his  retinue       .             .             .  ib. 

125  When  the  rights  of  an  ambassador  expire     ....  500 

126  Cases  when  new  credentials  are  necessary          .            .            .  ib. 

127  Conclusion             .             .            .            ,            .             .            .  ib. 


THE 


LAW  OF  NATIONS. 


PRELIMINARIES. 


IDEA  AND   GENERAL   PRINCIPLES   OF  THE  LAW  OF  NATIONS. 


JN  ATIONS  or  states  are  bodies  politic,  societies  of  men  §  1. 
united  together  for  the  purpose  of  promoting  their  mutual  is  meant  b? 
safety  and  advantage  by  the  joint  efforts  of  their  combined  gtat*.10n 
strength. 

Such  a  society  has  her  affairs  and  her  interests ;  she  de-  §  2.    it  is  » 
liberates  and  takes  resolutions  in  common ;  thus  becoming  a  moral  per~ 
moral  person,  who  possesses  an  understanding  and  a  will  pe-  S01 
culiar  to  herself,  and  is  susceptible  of  obligations  and  rights. 

To  establish  on  a  solid   foundation  the   obligations  and  ?  3.  Defini- 
ng fas  of  nations,  is  the  design  of  this  work.  tion  of  the 

The  Law  of  Nations  is  the  science  which  teaches  the  rights  ™^ 
subsisting  between  nations  or  states,  and  the  obligations  cor- 
respondent to  those  rights.(T) 


(1)  The  Law  of  Nations  modifies 
the  intercourse  of  independent  com- 
monwealths in  peace,  and  prescribes 
limits  to  their  hostilities  in  war.  It 
prescribes,  that  in  peace  nations  should 
do  each  other  as  much  good,  and  in  time 
of  war  as  little  harm,  as  may  be  possi- 
ble, without  injuring  their  own  proper 
real  interests.  The  laws  of  nations,  in 
short,  establish  that  principle  and  rule 
of  conduct  which  should  prevent  the 
strongest  nation  from  abusing  its  power, 
and  induce  it  to  act  justly  and  gene- 
rously towards  other  states,  upon  the 
broad  principle  that  true  happiness, 
whether  of  a  single  individual  or  of 
several,  can  only  result  from  each 
adopting  conduct  influenced  by  a  sin- 
increase  the  general  wel- 


fare  of  all  mankind.     (Post,  $  13,  14 ;  General 
Mackintosh,    Dis.   3,   4 ;    Montesq.    de  views  of  the 
1'Esprit  des  Lois,  liv.  1,  c.  3 ;  and  see  law  of  na- 
1  Bla.  Com.  34  to  44 ;  4  Bla.  Com.  66,  tions,  and 
67.)     In   cases   of  doubt  arising  upon  how  it  is  to 
what  is  the  Law  of  Nations,  it  is  now  be  ascer- 
an    admitted    rule    among    all     Euro-  tained. 
pean    nations,  that  our   common  reli- 
gion,   Christianity,    pointing    out    the 
principles  of  natural  justice,  should  be 
equally   appealed  to  and   observed   by 
all  as   an  unfailing  rule   of   construc- 
tion.    (2  Ward's  Law  of  Nations,   pp. 
11,  339,  340.)      The  difficulty  is,  that 
there  is  no  general  moral  international 
code  framed  by  the  consent  of  the  Eu- 
ropean powers,  so  desirable  to  be  fixed, 
especially  at  this  period,  when  harmony 
happily  appears  to  subsist,  and  most 


N.  B.  The  notes  numbered  as  1,  2,  3,  4,  Ac.,  and  in  general  concluding  with 
0.,  are  by  the  present  Editor. 

7  E  49 


Iv 


IDEA  AND   GENERAL   PRINCIPLES 


,IMI-        In  this  treatise  it  will  appear,  in  what  manner  States,  as 
^—  such,  ought  to  regulate  all  their  actions.     We  shall  examine 


of  the  nations  of  Europe  have,  by  re- 
cent experience,  become  practically 
convinced  of  the  advantages  that  would 
result  from  the  establishment  of  fixed 
general  rules,  so  as  to  reconcile  the  fre- 
quent discordancy  of  the  decisions  of 
their  various  prize  tribunals  and  upon 
other  contests.  The  statesmen  of  the 
higher  powers  of  Europe  would  immor- 
talize themselves  by  introducing  such 
a  code,  and  no  period  of  history  for  the 
purpose  has  been  so  favourable  and  op- 
portune. (See  Atcheson's  Report  of 
the  case  of  Havelock  v.  Rockwood,  Pre- 
face i.) 

The  law  of  nations  is  adopted  in 
Great  Britain  in  its  full  and  most  liberal 
extent  by  the  common  law,  and  is  held 
to  be  part  of  the  law  of  the  land ;  and 
all  statutes  relating  to  foreign  affairs 
should  be  framed  with  reference  to  that 
rule.  (4  Bla.  Com.  67.)  But  still  there 
is  no  general  code;  and  to  the  regret 
that  none  has  been  introduced,  may 
be  also  added,  the  want  of  an  interna- 
tional court  or  tribunal,  to  decide  upon 
and  enforce  the  law  of  nations  when 
disputed ;  and  consequently,  although 
when  states  are  temperately  inclined 
to  ascertain  and  be  governed  by  the 
law  of  nations,  there  will  be  little  doubt 
upon  the  decision,  or  of  the  adoption 
of  measures  the  most  just ;  yet,  if  a 
state  will  not  listen  to  the  immutable 
principles  of  reason,  upon  the  basis  of 
which  the  imperfect  law  of  nations  is 
founded,  then  the  only  remedy  is  to 
appeal  to  arms;  and  hence  frequently 
the  just  cause  of  war,  which,  if  there 
were  a  fixed  code,  with  a  proper  tribu- 
nal to  construe  it,  would  in  general  be 
prevented. 

The  pre-  The  sources  from  whence  is    to  be 

sent  sources  gathered  information — what  is  the  posi- 
of  inforaa-   tive  Law  of  Nations  generally  and  per- 
tion  upon       manently  binding  upon  all  independent 
the  law  of     states  f  are  acknowledged  to  be  of  three 
Nations.         descriptions :  First,  the  long  and  ordi- 
nary PRACTICE  of  nations,  which  affords 
evidence   of  a   general   custom,  tacitly 
agreed   to   be  observed  until  expressly 
abrogated.     Secondly,  the  RECITALS  of 
what  is   acknowledged  to    have    been 
the   law   or    practice    of    nations,  and 
which  recitals  will  frequently  be  found 
in  modern  treaties.    Thirdly,  the  WRIT- 
INGS of  eminent  authors,  who  have  long, 
as  it  were  by  a  concurrence  of  testi- 
50 


mony  and  opinion,  declared  what  is  the 
existing  international  jurisprudence. 

Thus  Lord  Mansfield,  in  Triquet  v. 
Bath,  (3  Burr.  Rep.  1481,)  stated  as  the 
declaration  of  Lord  Talbot,  that  the 
law  of  nations  is  to  be  collected  from 
the  practice  of  different  nations,  (and  see 
per  Sir  William  Scott,  in  The  Fladoyen, 
1  Rob.  Rep.  115,  post,  Ixiii.  n.  (7),)  and 
the  authority  of  writers,  such  as  Gro- 
tius,  Barbeyrac,  Bijnkershock,  Wic- 
quefort,  Ac.,  there  being  no  English 
writer  of  eminence  upon  the  subject; 
and  English  elementary  writers  of  high 
authority  have  also  acknowledged  that 
such  foreign  authors  are  authorities  to 
ascertain  the  law  of  nations.  (Comyn's 
Digest,  tit.  "Ambassador,"  B. ;  Viner's 
Ab.  "Merchant,"  A.  1;  and  3  Bla. 
Com.  273.)  To  these  are  to  be  added, 
Puffendorf,  Wolf,  Selden,  Valen,  Cle- 
rac,  Pothier,  Burlamaqui,  Emerigon, 
Roccus,  Casegis,  Loecenius,  Santerna, 
Maline,  Molloy,  and  above  all,  the  pre- 
sent work  of  Vattel;  to  which  may  be 
added  some  modern  works  of  great 
ability,  but  not  yet  acknowledged  to  be 
such  high  general  authority  as  the  for- 
mer, viz.  Ward's  and  Marten's  Law 
of  Nations,  and  the  recent  valuable 
French  publication,  Cours  de  Droit 
Public  Interne  et  Externe,  par  le  Com- 
mandeur  Silvestre  Pinheiro  Ferreira, 
Ministre  D'Etat  au  Paris,  1830,  which 
embraces  the  French  modern  view  of 
the  law  of  nations  upon  most  of  the 
subjects  discussed  in  Vattel  and  some 
others. 

It  was  from  the  more  ancient  of  these 
several  authors,  and  other  similar  re- 
sources, that  Lord  Mansfield  framed 
the  celebrated  letter  of  the  Duke  of 
Newcastle  to  the  King  of  Prussia's 
Secretary,  which  is  considered  a  stand- 
ard of  authority,  upon  the  laws  of 
nations,  as  far  as  respects  the  then 
disputed  right  to  search  for  and  seize 
enemies'  property  on  board  neutral 
ships  in  certain  cases  in  time  of 
war.  (See  Holliday's  Life  of  Lord 
Mansfield,  vol.  2,  p.  424,  Ac.,  and  Col- 
lectanea  Juridica,  1  vol.  129;  see  also 
Viveash  v.  Seeker,  3  Maule  &  Selwyn, 
284,  in  which  Lord  Ellenborough 
quotes  several  of  the  above  authors,  to 
ascertain  the  law  of  nations  upon  the 
privilege  of  consuls.) 

Upon    some    parts    of  the   law   of 


OF   THE   LAW   OF   NATIONS. 


Iv 


the  Obligations  of  a  people,  as  well  towards  themselves  as 
towards  other  nations ;  and  by  that  means  we  shall  discover 


nations,  especially  that  relating  to  mari- 
time affairs,  there  are  ancient  codes, 
which  either  originated  in  authority, 
or  were  afterwards  acknowledged  to 
have  become  such;  but  still  those  codes 
in  the  present  state  of  commercial  in- 
tercourse are  imperfect  Of  those  are 
the  Rhodian  Laws,  being  one  of  the 
earliest  systems  of  marine  law,  but 
which  was  superseded  by  the  collec- 
tion entitled  Consolato  del  Mare,  Gro- 
tius,  Book  3,  ch.  1,  s.  5,  n.  6.  Next 
in  order  are  the  Laics  of  Oleron,  pro- 
mulgated about  the  thirteenth  century. 
Another  system  of  international  law 
was  framed  by  the  deputies  of  the 
Hanseatic  League  in  1597,  and  which 
was  confirmed  with  additions  in  1614, 
and  has  obtained  much  consideration 
in  the  maritime  jurisprudence  of  na- 
tions. (See  remarks  on  that  code,  2 
Ward's  Law  of  Nations,  276  to  290). 
But  the  most  complete  and  compre- 
hensive system  of  the  marine  law  of 
nations  is  the  celebrated  Ordinance  of 
Marine  of  Louis  XIV.,  published  in 
1681,  and  which,  coupled  with  the 
commentary  of  Valin,  Lord  Mansfield 
always  treated  as  of  the  highest  au- 
thority. (See  1  Marshall  on  Insurance, 
Prelim.  Dis.  18.) 

In  modern  times,  in  order  to  pre- 
vent any  dispute  upon  the  existence 
or  application  of  the  general  law  of 
nations,  either  pending  peace,  or  at  or 
after  the  subsequently  breaking  out  of 
war  between  two  or  more  independent 
states,  it  has  become  the  practice  to 
enter  into  express  treaties,  carefully  pro- 
viding for  every  contingency,  and 
especially  modifying  and  softening  the 
injurious  consequences  of  sudden  war 
upon  the  commercial  and  other  inter- 
course 'between  the  two  states,  and 
sometimes  even  wholly  changing  the 
character  of  war  or  of  alienage,  and  even 
enabling  a  foreign  alien  enemy  during 
war  to  retain  his  interest  in  land  in  the 
opponent  country.  (See  an  illustrating 
instance  in  Sutton  v.  Sutton,  1  Russ.  & 
My.  Rep.  663.)  {Society,  Ac.  v.  New  Ha- 
ven,  8  Wheat  R.  464. }  In  these  cases, 
the  treaty  between  the  two  contract- 
ing states  either  alters,  or  expressly  de- 
clares the  law  of  nations,  and  binds  each. 
But  still  questions  upon  the  general  law 
of  nations  will  frequently  arise,  and  it 
will  then  become  necessary  to  recur  to 


the  other  evidence  of  what  is  the  law  of 
nations,  viz.  the  previous  ordinary  and 
general  or  particular  practice,  or  the 
opinion  of  the  authors  before  alluded  to. 

In  the  latter  part  of  the  last,  and  in 
the  present  century,  a  great  accession 
of  learning,  information,  and  authority 
upon  the  law  of  nations  has  been  af- 
forded by  the  valuable  decisions  of  Sir 
W.  Scott,  (afterwards  Lord  Stowell,) 
and  Sir  J.  Nicholl  in  the  Court  of  Ad- 
miralty and  Prize  Court,  and  by  seve- 
ral decisions  in  our  Courts  of  Law 
and  Equity.  The  known  learning 
and  scrupulous  justice  evinced  in  those 
decisions,  have  commanded  the  respect, 
the  admiration  and  adoption,  of  all  the 
European  states,  and  of  that  modern, 
enlightened,  and  energetic  nation, 
America.  To  these  may  be  added, 
Chalmer's  Collection  of  Opinions,  which 
contain  great  learning  upon  many  sub- 
jects of  the  public  affairs  of  nations. 
These  have  been  fully  published  since 
Vattel  wrote;  and  the  editor  has  at- 
tempted to  improve  this  edition,  by 
occasionally  referring  in  the  notes  to 
the  reports  and  work  alluded  to.  The 
editor  has  also,  in  his  Treatise  on  Com- 
mercial Law,  and  in  a  Summary  of  the 
Law  of  Nations,  endeavoured  to  take 
a  more  extended  view  of  some  of  those 
branches  of  the  law  of  nations,  princi- 
pally as  it  affects  foreign  commerce, 
and  of  the  decisions  and  works  subse- 
quent to  the  publication  of  Vattel. 

If  the  perfect  general  rights  or  law  of  Violation 
nations  be  violated,  then  it  appears  to  Of  Law  of 
be  conceded,  that   such  violation   may  Nations, 
be  the  actual  and  avowed  ground  of  a  wncn  a 
just  war ;  and  it  is  even  laid  down  that  ground  of 
it  is  the  duty  of  every  nation  to  chas-  war. 
tise  the  nation  guilty  of  the  aggression. 
(Vattel,  post,  Book  I.  chap,  xxiii.  g  283, 
p.  126;  Book  II.  chap.  ii.  g  24,  p.  144; 
|  65,  66,  67,  p.  160,  161.) 

Unhappily,  especially  in  modern 
times,  we  have  found  that  the  law  of 
nations  has  sometimes  been  set  at 
naught  by  overpowerful  states,  adher- 
ing (to  use  the  words  of  an  English 
monarch)  rather  to  Common  Law  than 
stopping  to  inquire  whether  the  law  of 
nature  and  of  justice  had  not  become, 
and  been  declared  in  that  instance, 
part  of  the  law  of  nations.  It  may 
therefore  be  asked,  of  what  utility  is 
the  law  of  nations,  since  it  is  of  such 
51 


Iv 


IDEA  AND   GENERAL   PRINCIPLES 


PHELIMI-    the  Rights  which   result   from  these   obligations.     For,  the 
NABI"8' — right  being  nothing  more  than  the  power  of  doing  what  is 
C  IY*  3   morally  possible,  that  is  to  say,  what  is  proper  and  consist- 
ent with  duty, — it  is  evident  that  right  is  derived  from  duty, 
or  passive  obligation, — the  obligation  we  lie  under  to  act  in 
such  or  such  manner.     It  is  therefore  necessary  that  a  Na- 
tion should  acquire  a  knowledge.of  the  obligations  incumbent 
on  her,  in  order  that  she  may  not  only  avoid  all  violation  of 
her  duty,  but  also  be  able  distinctly  to  ascertain  her  rights, 
or  what  she  may  lawfully  require  from  other  nations. 
§  4.    In  Nations  being  composed  of  men  naturally  free  and  inde- 

what  light  pendent,  and  who,  before  the  establishment  of  civil  societies, 
"totes' are  to  ^ve(^  together  m  the  state  of  nature, — Nations,  or  sovereign 
be  consi-  states,  are  to  be  considered  as  so  many  free  persons  living 
dered.  together  in  the  state  of  nature. 


No 

nent  or  ge- 


imperfect  and  inefficient  obligation? 
The  answer  is,  that  all  nations,  al- 
though for  a  time  astounded  and  sur- 
prised by  the  unexpected  aggression  of 
an  oppressive  and  ambitions  conqueror, 
will  yet  ultimately  feel,  and  endeavour 
to  give  effect  to,  the  true  law  of  na- 
tions, lest,  by  suffering  its  continued 
violations,  they  may  individually  be 
sacrificed  ;  and  consequently,  as  in  the 
instance  alluded  to,  they  will  ulti- 
mately coalesce  and  associate  in  one 
common  cause,  to  humiliate  and  over- 
come the  proud  invader  of  all  just 
rights  and  principles.  It  is  therefore 
of  the  highest  importance  to  collect  all 
the  principles  and  rules,  which,  in 
cases  of  doubt,  must  ever  be  consulted, 
at  least  by  statesmen,  in  endeavouring 
to  settle  differences  between  differing 
states ;  and  no  authority  stands  higher 
in  this  respect  than  Vattel. 

There   is    no  permanent   and  general 
international  court,  and  it  will  be  found, 


,  ,  that  in  general  the  sovereign,  or  go- 
vernment of  each  state,  who  has  the 
power  of  declaring  war  and  peace,  has 
also,  as  an  incident,  sole  power  of  de- 
ciding upon  questions  of  booty,  cap- 
ture, prize,  and  hostile  seizure,  though 
sometimes  that  power  is  delegated,  as 
in  Great  Britain,  as  respects  maritime 
seizures,  by  commission  to  the  judge 
of  the  Admiralty  Court,  with  an  ap- 
peal from  his  decisions  to  the  Privy 
Council.  In  these  cases  no  other  mu- 
nicipal court  has  cognizance  in  case  of 
any  hostile  seizure.  Elphintton  v.  Be- 
dreeehund,  Knapp's  Rep.  316  to  361  ; 
and  Hill  v.  'lieardon,  2  Russ.  Rep.  608, 
and  further,  post,  p.  392.  So  there  is 
no  general  international  court  in  which 
52 


a  treaty  can  be  directly  enforced,  al- 
though, collaterally,  its  meaning  may 
be  discussed  in  a  municipal  court ; 
therefore,  no  bill  to  enforce  a  treaty 
can  be  sustained  in  equity.  Nabob  of 
Carnatic  v.  East  India  Company,  2  Ves. 
jun.  56 ;  and  Hill  v.  JRcardon,  2  Sim. 
A  Stu.  437 ;  2  Russ.  Rep.  608. 

Sometimes,  however,  especially  in 
modern  times,  treaties,  confirmed  by 
temporary  statutes  in  each  country,  ap- 
point a  temporary  international  court, 
with  limited  powers,  to  decide  upon 
certain  claims,  and  to  be  satisfied  out 
of  an  appointed  public  fund.  Thus, 
in  the  treaty  of  peace  between  Great 
Britain  and  France,  and  by  the  59  G.  3, 
c.  31,  certain  commissioners  were  ap- 
pointed to  carry  into  effect  the  con- 
ventions for  liquidating  the  claims  of 
British  subjects  on  the  French  govern- 
ment, with  an  appeal  to  the  Privy 
Council.  In  these  cases,  the  appointed 
jurisdiction  is  exclusive,  and  no  other 
municipal  court  has  any  power  as  re- 
gards the  adjustment  of  the  claims  be- 
tween the  two  subjects  of  each  coun- 
try ; — though,  as  between  private  indi- 
viduals, if  any  claimant  stand  in  the 
situation  of  an  agent  or  trustee,  then, 
in  a  court  of  equity,  he  may  be  com- 
pelled to  act  as  a  trustee  of  the  sum 
awarded  to  him.  Hill  v.  lieardon,  Jac. 
Rep.  84;  2  Russ.  Rep.  608  to  633, 
over-ruling  the  Vice-Chancellor's  de- 
cision in  2  Sim.  &  Stu.  437. — C.  {  Co- 
megyg  v.  Vance,  1  Peters  S.  C.  Rep.  193, 
decided  upon  the  Treaty  with  Spain, 
which  coded  Florida  to  the  United 
States,  dated  May  2d,  1819.  See  also 
Leitapies  v.  Inyraham,  5  Barr,  71,  and 
the  cases  cited.} 


NARIES. 


OF   THE    LAW   OF   NATIONS.  h 

It  is  a  settled  point  with  writers  on  the  natural  law,  that  PRELIMI- 
all  men  inherit  from  nature  a  perfect  liberty  and  independ- 
ence, of  which  they  cannot  be  deprived  without  their  own 
consent.  In  a  State,  the  individual  citizens  do  not  enjoy 
them  fully  and  absolutely,  because  they  have  made  a  partial 
surrender  of  them  to  the  sovereign.  But  the  body  of  the 
nation,  the  State,  remains  absolutely  free  and  independent 
with  respect  to  all  other  men,  and  all  other  Nations,  as  long 
as  it  has  not  voluntarily  submitted  to  them. 

As  men  are  subject  to  the  laws  of  nature, — and  as  their  g  5.   To 
union  in  civil  society  cannot  have  exempted  them  from  the '  " 
obligation  to  observe  those  laws,  since  by  that  union  they1 
do  not  cease  to  be  men, — the  entire  nation,  whose  common 
will  is  but  the  result  of  the  united  wills  of  the  citizens,  re- 
mains subject  to  the  laivs  of  nature,  and  is  bound  to  respect 
them  in  all  her  proceedings.     And  since  right  arises  from  ob- 
ligation, as  we  have  just  observed  (§  3),  the  nation  possesses 
also  the  same  rights  which  nature  has  conferred  upon  men  in 
order  to  enable  them  to  perform  their  duties. 

We  must  therefore  apply  to  nations  the  rules  of  the  law  $  6.    in 
of  nature,  in  order  to  discover  what  their  obligations  are,  and  wh»t  the 
what  their  rights :  consequently,  the  law  of  Nations  is  origin-  ^w  of  ?a: 
ally  no  other  than  the  law  of  Nature  applied  to  Nations.  n^y  °^J 
But  as  the  application  of  a  rule  cannot  be  just  and  reason-  sists. 
able  unless  it  be  made  in  a  manner  suitable  to  the  subject,  we 
are  not  to  imagine  that  the  law  of  nations  is  precisely  and  in 
every  case  the  same  as  the  law  of  nature,  with  the  difference 
only  of  the  subjects  to  which  it  is  applied,  so  as  to  allow  of 
our  substituting  nations  for  individuals.     A  state  or  civil  so- 
ciety is  a  subject  very  different  from  an  individual  of  the  hu- 
man race ;  from  which  circumstance,  pursuant  to  the  law  of 
nature  itself,  there  result,  in  many  cases,  very  different  obliga- 
tions and  rights :  since  the  same  general  rule,  applied  to  two 
subjects,  cannot  produce  exactly  the  same  decisions,  when 
the  subjects  are  different ;  and  a  particular  rule  which  is  per-  [  Ivii  ] 
fectly  just  with  respect  to  one  subject,  is  not  applicable  to 
another   subject   of   a   quite   different   nature.      There   are 
many  cases,  therefore,  in  which   the   law  of  Nature  does 
not  decide  between  state  and  state  in  the  same  manner  as 
it  would  between  man  and  man.     We  must  therefore  know 
how  to  accommodate  the  application  of  it  to  different  sub- 
jects ;  and  it  is  the  art  of  thus  applying  it  with  a  precision 
founded  on  right  reason,  that  renders  the  law  of  Nations  a 
distinct  science.(2) 

(2)  M.  de  Vattel  then  proceeds  to  heads— First,  the  natural  law  of  na- 
state  the  different  heads  of  interna-  tions ;  and  secondly,  the  positive.  The 
tional  law,  which  has  been  variously  former  is  that  of  God  and  our  con- 
subdivided  by  other  writers.  The  science,  and  consequently  immutable, 
clearest  division  is  under  too  principal  and  ought  to  be  the  basis  of  the  posi- 


Iviii 


IDEA   AND   GENERAL   PRINCIPLES 


§7.    Defini 
tion  of  the 
necessary 
law  of  na- 
tions. 


We  call  that  the  Necessary  Law  of  Nations  which  consists 
in  the  application  of  the  law  of  nature  to  Nations.  It  is 
Necessary  because  nations  are  absolutely  bound  to  observe  it. 
This  law  contains  the  precepts  prescribed  by  the  law  of  nature 
to  States,  on  whom  that  law  is  not  less  obligatory  than  on  in- 


tive  laws  of  nations.  The  positive  is 
threefold;  First,  the  universal  volun- 
tary law  or  uniform  practice  of  nations 
in  general ;  secondly,  the  customary 
law;  and  thirdly,  the  conventional  lain 
or  treaties.  (See  1  Chitt/s  Commer- 
cial Law,  25  to  47.)— C. 

The  following  note  of  a  former  edi- 
tor is  deservedly  retained. 

The  study  of  the  science  of  the  law 
of  nations  presupposes  an  acquaint- 
ance with  the  ordinary  law  of  nature, 
of  which  human  individuals  are  the 
objects.  Nevertheless,  for  the  sake  of 
those  who  have  not  systematically 
studied  that  law,  it  will  not  be  amiss 
to  give  in  this  place  a  general  idea  of 
it  The  natural  law  is  the  science  of 
the  laws  of  nature,  of  those  laws  which 
nature  imposes  on  mankind,  or  to 
which  they  are  subject  by  the  very  cir- 
cumstance of  their  being  men ;  a  sci- 
ence, whose  first  principle  is  this  axiom 
of  incontestable  truth— "  The  great 
end  of  every  being  en8bwed  with  in- 
tellect and  sentiment,  is  happiness." 
It  is  by  the  desire  alone  of  that  happi- 
ness, that  we  can  bind  a  creature  pos- 
sessed of  the  faculty  of  thought,  and 
form  the  ties  of  that  obligation  which 
shall  make  him  submit  to  any  rule. 
Now,  by  studying  the  nature  of  things, 
and  that  of  man  in  particular,  we  may 
thence  deduce  the  rules  which  man 
must  follow  in  order  to  attain  his  great 
end, — to  obtain  the  most  perfect  hap- 
piness of  which  he  is  susceptible.  We 
call  those  rules  the  natural  laws,  or 
the  laws  of  nature.  They  are  certain, 
they  are  sacred,  and  obligatory  on 
every  man  possessed  of  reason,  inde- 
pendently of  every  other  considera- 
tion than  that  of  his  nature,  and  even 
though  we  should  suppose  him  totally 
ignorant  of  the  existence  of  a  God. 
But  the  sublime  consideration  of  an 
eternal,  necessary,  infinite  Being,  the 
author  of  the  universe,  adds  the  most 
lively  energy  to  the  law  of  nature,  and 
carries  it  to  the  highest  degree  of  per- 
fection. That  necessary  Being  ne- 
cessarily unites  in  himself  all  perfec- 
tion :  he  is,  therefore,  superlatively 
good,  and  displays  his  goodness  by 
54 


forming  creatures  susceptible  of  hap- 
piness. It  is  then  his  wish  that  his 
creatures  should  be  as  happy  as  is  con- 
sistent with  their  nature  :  consequently, 
it  is  his  will  that  they  should,  in  their 
whole  conduct,  follow  the  rules  which 
that  same  nature  lays  down  for  them, 
as  the  most  certain  road  to  happiness. 
Thus  the  will  of  the  Creator  perfectly 
coincides  with  the  simple  indications 
of  nature ;  and  those  two  sources  pro- 
ducing the  same  law,  unite  in  forming 
the  same  obligation.  The  whole  re- 
verts to  the  first  great  end  of  man, 
which  is  happiness.  It  was  to  con- 
duct him  to  that  great  end  that  the 
laws  of  nature  were  ordained  :  it  is  from 
the  desire  pf  happiness  that  his  obliga- 
tion to  observe  those  laws  arises. 
There  is,  therefore,  no  man^what- 
ever  may  be  his  ideas  respecting  the 
origin  of  the  universe — even  if  he  had 
the  misfortune  to  be  an  atheist — who 
is  not  bound  to  obey  the  laws  of  na- 
ture. They  are  necessary  to  the  gene- 
ral happiness  of  mankind;  and  who- 
ever should  reject  them,  whoever  should 
openly  despise  them,  would  by  such 
conduct  alone  declare  himself  an  ene- 
my to  the  human  race,  and  deserve  to 
be  treated  as  such.  Now,  one  of  the 
first  truths  which  the  study  of  man  re- 
veals to  ns,  and  which  is  a  necessary 
consequence  of  his  nature,  is,  that  in 
a  state  of  lonely  separation  from  the 
rest  of  his  species,  ho  cannot  attain 
his  great  end — happiness :  and  the 
reason  is,  that  he  was  intended  to  live 
in  society  with  his  fellow-creatures. 
Nature,  herself,  therefore,  has  esta- 
blished that  society,  whoso  great  end 
is  the  common  advantage  of  all  its 
members;  and  the  means  of  attaining 
that  end  constitute  the  rules  that  each 
individual  is  bound  to  observe  in  his 
whole  conduct.  Such  are  the  natural 
laws  of  human  society.  Having  thus 
given  a  general  idea  of  them,  which  is 
sufficient  for  any  intelligent  reader, 
and  is  developed  at  large  in  several 
valuable  works,  let  us  return  to  the  par- 
ticular object  of  this  treatise. — Note 
ed.  A.  D.  1797. 


OF   THE   LAW   OF   NATIONS.  Iviti 

dividuals,  since  states  are  composed  of  men,  their  resolutions    PRELIMI- 
are  taken  by  men,  and  the  law  of  nature  is  binding  on  all     NARIKS'  • 
men,  under  whatever   relation   they  act.     This  is  the  law 
which   Grotius,  and  those  who  follow  him,  call  the  Internal 
law  of  Nations,  on  account  of  its  being  obligatory  on  nations 
in  point  of  conscience.^)     Several  writers  term  it  the  Na- 
tural laiv  of  Nations. 

Since  therefore  the  necessary  law  of  nations  consists  in  the  g  s.   It  is 
application  of  the  law  of  nature  to  states, — which  law  is  im-  immutable, 
mutable,  as  being  founded  on  the  nature  of  things,  and  par- 
ticularly on  the  nature  of  man, — it  follows  that  the  Necessary 
law  of  nations  is  immutable. 

Whence,  as  this  law  is  immutable,  and  the  obligations  that  g  9.  Nations 
arise  from  it  necessary  and  indispensable,  nations  can  neither  can  make 
make  any  changes  in  it  by  their  conventions,  dispense  with  it  no  change 
in  their  own  conduct,  nor  reciprocally  release  each  other  from  ^sj*  "8°er 
the  observance  of  it.  with  the  ob- 

This  is  the  principle  by  which  we  may  distinguish  lawful ligations 
conventions  or  treaties  from  those  that  are  not  lawful,  and  ^isins  from 
innocent  and  rational  customs  from  those  that  are  unjust  or1' 
censurable. 

There  are  things,  just  in  themselves,  and  allowed  by  the 
necessary  law  of  nations,  on  which  states  may  mutually  agree 
with  each  other,  and  which  they  may  consecrate  and  enforce 
by  their  manners  and  customs.  There  are  others  of  an  in-  [  lix  ] 
different  nature,  respecting  which,  it  rests  at  the  option  of 
nations  to  make  in  their  treaties  whatever  agreements  they 
please,  or  to  introduce  whatever  custom  or  practice  they 
think  proper.  But  every  treaty,  every  custom,  which  con- 
travenes the  injunctions  or  prohibitions  of  the  Necessary  law 
of  nations  is  unlawful.  It  will  appear,  however,  in  the  sequel, 
that  it  is  only  by  the  Internal  law,  by  the  law  of  Conscience, 
such  conventions  or  treaties  are  always  condemned  as  unlaw- 
ful, and  that,  for  reasons  which  shall  be  given  in  their  pro- 
per place,  they  are  nevertheless  often  valid  by  the  external 
law.  Nations  being  free  and  independent,  though  the  con- 
duct of  one  of  them  be  illegal  and  condemnable  by  the  laws 
of  conscience,  the  others  are  bound  to  acquiesce  in  it,  when 
it  does  not  infringe  upon  their  perfect  rights.  The  liberty 
of  that  nation  would  not  remain  entire,  if  the  others  were  to 
arrogate  to  themselves  the  right  of  inspecting  and  regulating 
her  actions ;  an  assumption  on  their  part,  that  would  be  con- 
trary to  the  law  of  nature,  which  declares  every  nation  free 
and  independent  of  all  the  others. 

Man  is  so  formed  by  nature,  that  he  cannot  supply  all  his  §  10.   S( 
own  wants,  but  necessarily  stands  in  need  of  the  intercourse  ci^y  esta- 
and  assistance  of  his  fellow-creatures,  whether  for  his  imme-  J^^f  by 

—  between  all 

(3)    See    this    position    illustrated,     mercial  Law,  28,  and  n.  (4),  pott,  Ix.  mankind. 
Mackintosh,    Dis.  7;  1  Chitty's   Com-    — C. 

55 


Ik  IDEA  AND   GENERAL   PRINCIPLES 

PRELIMI-    diate  preservation,  or  for  the  sake  of  perfecting  his  nature, 
•  and  enjoying  such  a  life  as  is  suitable  to  a  rational  being. 

This  is  sufficiently  proved  by  experience.  We  have  in- 
stances of  persons,  who,  having  grown  up  to  manhood  among 
the  bears  of  the  forest,  enjoyed  not  the  use  of  speech  or  of 
reason,  but  were,  like  the  brute  beasts,  possessed  only  of  sen- 
sitive faculties.  We  see  moreover  that  nature  has  refused  to 
bestow  on  men  the  same  strength  and  natural  weapons  of  de- 
fence with  which  she  has  furnished  other  animals — having,  in 
lieu  of  those  advantages,  endowed  mankind  with  the  faculties 
of  speech  and  reason,  or  at  least  a  capability  of  acquiring 
them  by  an  intercourse  with  their  fellow-creatures.  Speech 
enables  them  to  communicate  with  each  other,  to  give  each 
other  mutual  assistance,  to  perfect  their  reason  and  know- 
ledge ;  and  having  thus  become  intelligent,  they  find  a  thou- 
sand methods  of  preserving  themselves,  and  supplying  their 
wants.  Each  individual,  moreover,  is  intimately  conscious 
that  he  can  neither  live  happily  nor  improve  his  nature  with- 
out the  intercourse  and  assistance  of  others.  Since,  there- 
fore, nature  has  thus  formed  mankind,  it  is  a  convincing 
[  lx  ]  proof  of  her  intention  that  they  should  communicate  with, 
and  mutually  aid  and  assist  each  other. 

Hence  is  deduced  the  establishment  of  natural  society  among 
men.  The  general  law  of  that  society  z's,  that  each  indivi- 
dual should  do  for  the  others  every  thing  which  their  necessities 
require,  and  which  he  can  perform  without  neglecting  the  duty 
that  he  orves  to  himself:  (4)  a  law  which  all  men  must  observe 
in  order  to  live  in  a  manner  consonant  to  their  nature,  and 
conformable  to  the  views  of  their  common  Creator, — a  law 
which  our  own  safety,  our  happiness,  our  dearest  interests, 
ought  to  render  sacred  to  every  one  of  us.  Such  is  the  gene- 
ral obligation  that  binds  us  to  the  observance  of  our  duties : 
let  us  fulfil  them  with  care,  if  we  would  wisely  endeavour  to 
promote  our  own  advantage.(5) 

(4)  Ante,  Mi.  n.  (2),  post,  lx.  n.  (4).        whether  the  precise   acts  required   of 

(5)  See    the    same     position,    post,  him  be   or  be   not  such  as  their   own 
\  13,  and  post,  chap.  ii.    g   2  and   88.  municipal  law  will  enforce ;  just  so  a 
The    natural,  or   primary  law,  is    that  state,  in  its  relations  with  other  states, 
of   God   and  our   conscience,   the   law  is    bound    to    conduct  herself    in    the 
which   enjoins   us   to   do    good   to  our  spirit  of  justice,  benevolence,  and  good 
neighbour,  whether  in  literal  strictness  faith,  even  though  there  be  no  positive 
he  may  have  a  perfect  right  to  demand  rules   of  international  law,  by  the  let- 
such   treatment  from  us  or  not.     This  ter  of  which  she  may  bo  actually  tied 
is  a  law  that  ought  to  bo   as  strong  in  down.      The   same    rules    of  morality 
obligation    as    the   most    distinct   and  which   hold   togqther  men  in   families, 
positive   rule,  though    it    may  not  al-  and   which   form   families  into  a  corn- 
ways  be   capable   of  the   samo  precise  monwealth,  also  link  together  several 
definition,    nor    consequently    may    al-  commonwealths    as     members    of    tho 
low  tho  samo  remedies  to  enforce  its  ob-  great  society    of  mankind.      Common- 
gervance.      As  an  individual  is  bound  wealths,   as   well   as   private   men,  are 
by  the  law  of  nature   to   deal  honour-  liable  to  injury,  and  capable  of  benefit 
ably  and  truly  with  other  individuals,  from  each  other;   it  is   therefore  their 

66 


OF  THE  LAW   OF   NATIONS.  lx 

It  is  easy  to  conceive  what  exalted  felicity  the  world  would   PKELIMI- 

enjoy,  were  all  men  willing  to  observe  the  rule  that  we  have NARIES- 

just  laid  down.  On  the  contrary,  if  each  man  wholly  and 
immediately  directs  all  his  thoughts  to  his  own  interest,  if  he 
does  nothing  for  the  sake  of  other  men,  the  whole  human  race 
together  will  be  immersed  in  the  deepest  wretchedness.  Let 
us  therefore  endeavour  to  promote  the  general  happiness  of 
mankind :  all  mankind,  in  return,  will  endeavour  to  promote 
ours,  and  thus  we  shall  establish  our  felicity  on  the  most  solid 
foundations. 

The  universal  society  of  the  human  race  being  an  institu- 1 JJ^Jd 
tion  of  nature  herself,  that  is  to  say,  a  necessary  consequence  J^ions? 
of  the  nature  of  man, — all  men,  in  whatever  stations  they 
are  placed,  are  bound  to  cultivate  it,  and  to  discharge  its 
duties.  They  cannot  liberate  themselves  from  the  obligation 
by  any  convention,  by  any  private  association.  When,  there- 
fore, they  unite  in  civil  society  for  the  purpose  of  forming  a 
separate  state  or  nation,  they  may  indeed  enter  into  particu- 
lar engagements  towards  those  with  whom  they  associate 
themselves ;  but  they  remain  still  bound  to  the  performance 
of  their  duties  towards  the  rest  of  mankind.  All  the  differ- 
ence consists  in  this,  that  having  agreed  to  act  in  common, 
and  having  resigned  their  rights  and  submitted  their  will  to 
the  body  of  the  society,  in  every  thing  that  concerns  their 
common  welfare,  it  thenceforward  belongs  to  that  body,  that 
state,  and  its  rulers,  to  fulfil  the  duties  of  humanity  towards  [  Ixi  ] 
strangers,  in  every  thing  that  no  longer  depends  on  the 
liberty  of  individuals ;  and  it  is  the  state  more  particularly 
that  is  to  perform  those  duties  towards  other  states.  We  have 
already  seen,  (§  5),  that  men  united  in  society  remain  subject 
to  the  obligations  imposed  upon  them  by  human  nature. 
That  society,  considered  as  a  moral  person,  since  possessed 
of  an  understanding,  volition,  and  strength  peculiar  to  itself, 
is  therefore  obliged  to  live  on  the  same  terms  with  other  socie- 
ties or  states,  as  individual  man  was  obliged,  before  those 
establishments,  to  live  with  other  men,  that  is  to  say,  accord- 
ing to  the  laws  of  the  natural  society  established  among  the 
human  race,  with  the  difference  only  of  such  exceptions  as 
may  arise  from  the  different  nature  of  the  subjects. 


duty  to  reverence,  to  practise,  and  to  ty's    Commercial    Law,    28;     Mackin- 

enforce,   those  rales    of  justice  which  tosh,   Disc.    7;   Peake's   Rep.    116;    2 

control     and     restrain    injury,    which  Hen.  Bla.  259 ;  and  see  ante,  \  1 ;  and 

regulate   and   augment  benefit,    which  see  extract  from  Mr.  Pitt's  celebrated 

preserve  civilized  states  in  a  tolerable  speech  on   concluding  the   commercial 

condition  of  security  from  wrong,  and  treaty    between     Great     Britain     and 

which,    if    they    could    be    generally  France  in  A.  D.  1786,  and  in  which  he 

cteyed,   would    establish,   and  penna-  powerfully  refuted  the  doctrine  of  na- 

nently  maintain,  the  well-being  of  the  tional  and  hereditary  antipathy  between 

universal  commonwealth  of  the  human  England  and  France,  post,  book  ii.  chap. 

race.      (See     Observations    in    1    Chit-  ii.  3  21,  p.  144.— C. 

8  57 


Ixi  IDEA  AND   GENERAL   PRINCIPLES 

pRELiiri-        Since  the  object  of  the  natural  society  established  between 
^—  all  mankind  is — that  they  should  lend  each  other  mutual  as- 
o\/ect  of16   8^s^anceJ  in  order  to  attain   perfection  themselves,  and  to 
this6 sod-      render  their  condition  as  perfect  as  possible, — and  since  na- 
ety  of  na-    tions,  considered  as  so  many  free  persons  living  together  in 
tions.          a  state  of  nature,  are  bound  to  cultivate  human  society  with 
each  other, — the  object  of  the •»  great  society  established  by 
nature  between  all  nations  is  also  the  interchange  of  mutual 
assistance  for  their  own  improvement,  and  that  of  their  con- 
dition. 

I  is.  First  The  first  general  law  that  we  discover  in  the  very  object 
general  ob-  of  the  society  of  nations,  is  that  each  individual  nation  is 
v^g011".*0  bound  to  contribute  every  thing  in  her  power  to  the  happiness 
nations,  but  an^  perfection  of  all  the  others.* 

not  to  pre-        But  the  duties  that  we  owe  to  ourselves  being  unquestion- 
judice  itself,  ably  paramount  to  those  we  owe  to  others, — a  nation  owes 
herself  in  the  first  instance,  and  in  preference  to  all  other 
nations,  to  do  every  thing  she  can  to  promote  her  own  hap- 
g  14.  Ex-     piness  and  perfection.     (I  say,  every  thing  she  can,  not  only 
pianation     in  a  physical  but  in  a  moral  sense, — that  is,  every  thing 
of  this  ob-    that  she  can  do  lawfully,  and  consistently  ivith  justice  and 
sen-ation.     honour^     When,  therefore,  she  cannot  contribute  to  the  wel- 
fare of  another  nation  without  doing  an  essential  injury  to 
[  Ixii  ]  herself,  her  obligation  ceases  on  that  particular  occasion,  and 
she  is  considered  as  lying  under  a  disability  to  perform  the 
office  in  question.  (6) 

g  15.    The       Nations  being  free  and  independent  of  each  other,  in  the 
second  ge-    same  manner  as  men  are  naturally  free  and  independent,  the 
nerai  law     second  general  law  of  their  society  is,  that  each  nation  should 
fraud  in- ~  ^e  ^eft  *n  ^e  Peaceao^e  enjoyment  of  that  liberty  which  she  in- 
dependence herits  from  nature.     The  natural  society  of  nations  cannot 
of  nations,    subsist,  unless  the  natural  rights  of  each  be  duly  respected. 
No  nation  is  willing  to  renounce  her  liberty ;  she  will  rather 
break  off  all  commerce  with  those  states  that  should  attempt 
to  infringe  upon  it. 

g  16.   Effect     As  a  consequence  of  that  liberty  and  independence,  it  ex- 

of  that  liber-  clusively  belongs  to  each  nation  to  form  her  own  judgment  of 

*y-  what  her  conscience  prescribes  to  her, — of  what  she  can  or 

cannot  do, — of  what  it  is  proper  or  improper  for  her  to  do :  and 


*  Xenophon  points  out  the  true  rea-  n.  (1),  Ix.  n.  (5);  Book  ii.  chap.  ii.  $  21, 

son  of  this  first  of  all  duties,  and  esta-  p.  144,  post. — C. 

Wishes  its   necessity,  in   the  following        (6)  Puffendorf,  b.  iii.  c.  3,  8.  6,  p.  29, 

words: — "If  we  see  a  man  who  is  uni-  writes   clearly   and   decidedly   on   this 

formly  eager  to   pursue  his  own  pri-  important  subject; — he  observes  "The 

vate  advantage,  without  regard  to  the  law  of  humanity  does  not  seem  to  oblige 

rules  of  honour  or  the  duties  of  friend-  us    to    grant    passage    to    any    other 

ship,  why    should    we    in    any   emer-  goods,  except  such   as    are   absolutely 

gency  think   of   sparing  him?"    Note  necessary    for    the     support    of    their 

edit.  A.  D.  1797.     See  modern  author!-  life  to  whom  they  are  thus  conveyed." 

ties  in  support  of  that  position,  ante,  Iv.  — C. 


OF  THE   LAW   OF   NATIONS.  Ixii 

of  course  it  rests  solely  with  her  to  examine  and  determine  PKE"MI- 
whether  she  can  perform  any  office  for  another  nation  without — - 
neglecting  the  duty  which  she  owes  to  herself.  In  all  cases, 
therefore,  in  which  a  nation  has  the  right  of  judging  what 
her  duty  requires,  no  other  nation  can  compel  her  to  act  in 
such  or  such  particular  manner :  for  any  attempt  at  such 
compulsion  would  be  an  infringement  on  the  liberty  of  nations. 
We  have  no  right  to  use  constraint  against  a  free  person,  ex- 
cept in  those  cases  where  such  person  is  bound  to  perform 
some  particular  thing  for  us,  and  for  some  particular  reason 
which  does  not  depend  on  his  judgment, — in  those  cases,  in 
short,  where  we  have  a  perfect  right  against  him. 

In  order  perfectly  to  understand  this,  it  is  necessary  to  ob-  §  17-  Dis- 
serve, that  the  obligation,  and  the  right  which  corresponds  tmctlo°s  be- 
to  or  is  derived  from  it,  are  distinguished  into  external  andnal  andneex" 
internal.     The  obligation  is  internal,  as  it  binds  the  con-  temai,  per- 
science,  and  is  deduced  from  the  rules  of  our  duty :  it  is  ex-  feet  and  im- 
ternal,  as  it  is  considered  relatively  to  other  men,  and  pro- pei  3Ct  obll~ 
duces  some  right  between  them.     The  internal  obligation  is  ^ghta S 
always  the  same  in  its  nature,  though  it  varies  in  degree ;  but 
the  external  obligation  is  divided  into  perfect  and  imperfect; 
and  the  right  that  results  from  it  is  also  perfect  or  imperfect. 
The  perfect  right  is  that  Avhich  is  accompanied  by  the  right 
of  compelling  those  who  refuse  to  fulfil  the  correspondent  ob- 
ligation ;  the  imperfect  right  is  unaccompanied  by  that  right 
of  compulsion.     The  perfect  obligation  is  that  which  gives  to  [  Ixiii  ] 
the  opposite  party  the  right  of  compulsion;  the  imperfect 
gives  him  only  a  right  to  ask. 

It  is  now  easy  to  conceive  why  the  right  is  always  imper- 
fect, when  the  correspondent  obligation  depends  on  the  judg- 
ment of  the  party  in  whose  breast  it  exists ;  for  if,  in  such  a 
case,  we  had  a  right  to  compel  him,  he  would  no  longer  enjoy 
the  freedom  of  determination  respecting  the  conduct  he  is  to 
pursue  in  order  to  obey  the  dictates  of  his  own  conscience. 
Our  obligation  is  always  imperfect  with  respect  to  other 
people,  while  we  possess  the  liberty  of  judging  how  we  are 
to  act :  and  we  retain  that  liberty  on  all  occasions  where  we 
ought  to  be  free. 

Since  men  are  naturally  equal,  and  a  perfect  equality  pre-  §  is.  Equal- 
vails  in  their  rights  and  obligations,  as  equally  proceeding  **y  "f  na" 
from  nature — Nations  composed  of  men,  and  considered  astlons' 
so  many  free  persons  living  together  in  a  state  of  nature,  are 
naturally  equal,  and  inherit  from  nature  the  same  obligations 
and  rights.     Power  or  weakness  does  not  in  this  respect  pro- 
duce any  difference.     A  dwarf  is  as  much  a  man  as  a  giant ; 
a  small  republic  is  no  less  a  sovereign  state  than  the  most 
powerful  kingdom. 

By  a  necessary  consequence  of  that  equality,  whatever  is  §  M- 
lawful  for  one  nation  is  equally  lawful  for  any  other ;   and  °f ^ 
whatever  is  unjustifiable  in  the  one  is  equally  so  in  the  other. eqi 


Ixlii  IDEA   AND   GENERAL   PRINCIPLES 

PRELIM!-        A  nation  then  is  mistress  of  her  own  actions  so  long  as 
yARIE8-.  they  do  not  affect  the  proper  and  perfect  rights  of  any  other 
2  20.    Each  nation — so  long  as  she  is  only  internally  bound,  and  does  not 
mistress8 of   ^e  un(^er  anv  external  and  perfect  obligation.     If  she  makes 
her  own  ac-  an  ill  use  °f  her  liberty,  she  is  guilty  of  a  breach  of  duty ; 
tions  when   but  other  nations  are  bound  to  acquiesce  in  her  conduct, 
they  do  not  since  they  have  no  right  to  dictate  to  her. 
^rfect116          Since  nations- are  free,  independent,  and  equal — and  since 
rights  of      eacn  possesses  the  right  of  judging,  according  to  the  dictates 
others.         of  her  conscience,  what  conduct  she  is  to  pursue  in  order  to 
fulfil  her  duties ;  the  effect  of  the  whole  is,  to  produce,  at 
~  least    externally   and   in   the    eyes    of  mankind,    a   perfect 
-    equality  of  rights  between  nations,  in  the  administration  of 
tary  law  of  their  affairs  and  the  pursuit  of  their  pretensions,  without  re- 
nations,       gard  to  the  intrinsic  justice  of  their  conduct,  of  which  others 
have  no  right  to  form  a  definitive  judgment ;  so  that  what- 
ever may  be  done  by  any  one  nation  may  be  done  by  any 
[  Ixiv  ]  other ;  and  they  ought,  in  human  society,  to  be  considered 
as  possessing  equal  rights. 

Each  nation  in  fact  maintains  that  she  has  justice  on  her 
side  in  every  dispute  that  happens  to  arise ;  and  it  does  not 
belong  to  either  of  the  parties  interested,  or  to  other  nations, 
to  pronounce  a  judgment  on  the  contested  question.  The 
party  who  is  in  the  wrong  is  guilty  of  a  crime  against  her 
own  conscience  ;  but  as  there  exists  a  possibility  that  she  may 
perhaps  have  justice  on  her  side,  we  cannot  accuse  her  of 
violating  the  laws  of  society. 

It  is  therefore  necessary,  on  many  occasions,  that  nations 
should  suffer  certain  things  to  be  done,  though  in  their  own 
nature  unjust  and  condemnable ;  because  they  cannot  oppose 
them  by  open  force,  without  violating  the  liberty  of  some 
particular  state,  and  destroying  the  foundations  of  their 
natural  society.  And  since  they  are  bound  to  cultivate  that 
society,  it  is  of  course  presumed  that  all  nations  have  con- 
sented to  the  principle  we  have  just  established.  The  rules 
that  are  deduced  from  it  constitute  what  Monsieur  Wolf  calls 
"the  voluntary  law  of  nations;"  and  there  is  no  reason  why 
we  should  not  use  the  same  term,  although  we  thought  it 
necessary  to  deviate  from  that  great  man  in  our  manner  of 
establishing  the  foundation  of  that  law.  (7) 

(7)  The  natural  primary  or  internal  voluntary  law,  or  those  rules  which  are 

law  of  nations  which  is  thus  binding  considered  to  have  become  law  by  the 

in  conscience,  and  immutable,  it  must  uniform  practice  of  nations  in  general, 

be  admitted,  is  mere  theory,  until  it  has  and  by  the  manifest  utility  of  the  rules 

been  assented  to  by  a  state  as  binding  themselves ; — secondly,  the  customary 

on  her :  but  besides  that  law  of  con-  law,  or  that  which,  from  motives  of 

science,  which,  until  so  assented  to,  is  convenience,  has  by  tacit  but  implied 

imperfect,  there  is  what  is  termed  the  agreement  prevailed,  not  generally  in- 

potitive  or  secondary  law  of  nations,  and  deed  among  all  nations,  nor  with  BO 

which  is  threefold  ;  first,  the  universal  paramount  utility  as  to  become  a  por- 

60 


OF   THE   LAW   OF   NATIONS.  IxiV 

The  laws  of  natural  society  are  of  such  importance  to  the    "«"*i- 
safety  of  all  states,  that,  if  the   custom   once  prevailed  of     NARIE8- 
trampling  them  under  foot,  no  nation  could  flatter  herself  ^  22-   Rlsnt 
with  the  hope  of  preserving  her  national  existence,  and  en-  ag^uSfe 
joying   domestic   tranquillity,  however    attentive  to  pursue  infractors 
every  measure  dictated  by  the    most  consummate  prudence,  of  the  law 
justice,  and  moderation.*     Now  all  men  and  all  states  have  of  nations- 
a  perfect  right  to  those  things  that  are  necessary  for  their 
preservation,  since  that  right  corresponds  to  an  indispensa-  Right  of  de- 
Die  obligation.     All  nations  have  therefore  a  right  to  resort  clarins  war- 
to  forcible  means  for  the  purpose  of  repressing  any  one  par- 
ticular nation  who  openly  violates  the  laws  of  the  society 
which  Nature  has  established  between  them,  or  who  directly 
attacks  the  welfare  and  safety  of  that  society. 

But  care  must  be  taken  not  to  extend  that  right  to  the  \  23.    Mea- 
prejudice  of  the  liberty  of  nations.     They  are  all  free  and sure  of  that 
independent,  but  bound  to  observe  the  laws  of  that  society nght' 
which  Nature   has   established   between   them ;  and  so  far 
bound,  that,  when  any  of  them  violates  those  laws,  the  others 
have  a  right  to  repress  her.     The  conduct  of  each  nation,   [  Ixv  ] 
therefore,  is  no  further  subject  to  the  control  of  the  others, 
than  as  the  interests  of  natural  society  are  concerned.     The 
general  and  common  right  of  nations  over  the  conduct  of  any 
sovereign  state  is  only  commensurate  to  the  object  of  that 
society  which  exists  between  them. 

tion    of    universal    voluntary   law,   but  bear  you   out    in    a    further  progress ; 

enough  to  have  acquired  a  prescriptive  thus,   for    instance,    on    mere    general 

obligation    among    certain     states,    so  principles,  it  is  lawful  to  destroy  your 

situated  as  to  be  mutually  benefited  by  enemy,   and    mere    general    principles 

it,   as    the    customary   law   prevailing  make    no    great    difference   as   to  the 

among  different  nations   in  the  whale  manner  by  which  this  is  to  be  effected ; 

fishery,  and  illustrated  by  the  decision  but  the  conventional  law  of  mankind, 

in  Penning*  v.  Lord  Grenville,  1  Taunt,  which   is   evidenced   in   their  practice, 

Rep.  241,  248,  upon  the  division  of  the  does    make   a    distinction,  and   allows 

profits  arising  from  a  whale  when  killed  some  and  prohibits  other  modes  of  de- 

by   the   crews   of  several    boats ;   and  struction ;   and  a  belligerent  is  bound 

thirdly,  the   conventional   law,    or   that  to    confine     himself    to    those     modes 

which  is  agreed  between  particular  states  which  the  common  practice  of  mankind 

by  express  treaties,  a  law  binding  only  has  employed,  and  to  relinquish  "  those 

upon    the    parties   among  whom    such  which     the     same     practice     has     not 

treaties   are   in   force.     See    1   Chitty's  brought  within   the   ordinary   exercise 

Commercial  Law,  28,  29,  and  see  post,  of  war,  however  sanctioned  by  its  prin- 

2  27,  p.  66.  ciples   and  purposes :"   so  it  has   ever 

In  the  case  of  the  ship,  Flad  Oyen,  been  the  practice  of  nations   to  bring 

1  Rob.  Rep.  115,  Sir  William  Scott  ob-  vessels  captured  by  them  into  their  own 

served,    "  A   great  part  of  the  law  of  ports,  and  to  condemn  them  as  prize  in 

nations  stands  on  the  usage  and  prac-  their  own  Admiralty  Courts  ;  and  there- 

tice  of  nations,  and  on  no  other  founda-  fore  a  sentence  of  condemnation  in  the 

tion :  it  is  introduced,  indeed,  by  gene-  neutral   country   would   be   illegal  and 

ral  principles,  but  it  travels  with  those  void.    Ibid. — C. 

general  principles  only  to  a  certain  ex-  *  Etenim   si    hsec    pertubare    omnia 

tent;   and   if    it  stops   there,  you   are  et    permiscere   volumus,   totam   vitam, 

not  at  liberty  to  go  farther  and  to  say,  periculosam,     insidiosam,    infestamque 

that  Here   general   speculations  would  reddeinus.     Cicero  in  Verr.  ii.  15. 

F  61 


iXV  IDEA   AND    GENERAL    PRINCIPLES 

PBELIMI-        The  several  engagements  into  which  nations  may  enter 
IIES'     produce  a  new  kind  of  law  of  nations,  called  Conventional, 


Con-  or  of  Treaties.     As  it  is  evident  that  a  treaty  binds  none 
kut  the  contracting  parties,  the  conventional  law  of  nations 
tions,  or  law  is  not  a  universal  but  a  particular  law.     All  that  can  be  done 
of  treaties,   on  this  subject,  in  a  treatise  on  the  Law  of  Nations,  is  to  lay 
down  those  general  rules  which  nations  are  bound  to  observe 
with  respect  to  their  treaties.     A  minute  detail  of  the  various 
agreements   made   between   particular   nations,  and  of  the 
rights  and  obligations  thence  resulting,  is  matter  of  fact,  and 
belongs  to  the  province  of  history. 

#  25.  Cus-  Certain  maxims  and  customs,  consecrated  by  long  use,  and 
tomary  law  observed  by  nations  in  their  mutual  intercourse  with  each 
other  as  a  kind  of  law,  form  the  Customary  Law  of  Nations, 
or  the  Custom  of  Nations.  (8)  This  law  is  founded  on  a  tacit 
consent,  or,  if  you  please,  on  a  tacit  convention  of  the  nations, 
that  observe  it  towards  each  other.  Whence  it  appears  that 
it  is  not  obligatory  except  on  those  nations  who  have  adopted 
it,  and  that  it  is  not  universal,  any  more  than  the  conven- 
tional law.  The  same  remark,  therefore,  is  equally  applica- 
ble to  this  customary  law,  viz.  that  a  minute  detail  of  its  par- 
ticulars does  not  belong  to  a  systematic  treatise  on  the  law 
of  nations,  but  that  we  must  content  ourselves  with  giving  a 
general  theory  of  it ;  that  is  to  say,  the  rules  which  are  to 
be  observed  in  it,  as  well  with  a  view  to  its  effects,  as  to  its 
substance :  and  with  respect  to  the  latter,  those  rules  will 
serve  to  distinguish  lawful  and  innocent  customs  from  those 
that  are  unjust  and  unlawful. 

I  26.  Gene-     When  a  custom  or  usage  is  generally  established,  either 
rai  rule  re-  between  all  the  civilized  nations  in  the  world,  or  only  between 
that  law.      those  of  a  certain  continent,  as  of  Europe,  for  example,  or 
between  those  who  have  a  more  frequent  intercoui'se  with 
<jach  other ;  if  that  custom  is  in  its  own  nature  indifferent, 
[  Ixvi  ]  tnd  much  more,  if  it  be  useful  and  reasonable,  it  becomes  ob- 
ligatory on  all  the  nations  in  question,  who  are  considered 
as  having  given  their  consent  to  it,  and  are  bound  to  observe 
it  towards  each  other,  as  long  as  they  have  not  expressly  de- 
clared their  resolution  of  not  observing  it  in  future.  (9)     But 
if  that  custom  contains  any  thing  unjust  or  unlawful,  it  is 
not  obligatory ;  on  the  contrary,  every  nation  is  bound  to  re- 
linquish it,  since   nothing   can   oblige   or  authorize   her  to 
violate  the  law  of  nature. 

(8)    From   the    authorities    cited    in  (9)  As  to  this   position,  see   further, 

Benest   \.  Pipon,  Knapp's    Rep.  67,  it  Marten's   L.  N.    356,  and    Fenningi  v. 

seems,    that   most   nations   agree,   that  Lord  Grenville,  1  Taunton's  Rep.  248. 

twenty  years'  uninterrupted  usage  (for  There  must  be  a  reasonable  notification, 

twenty  yean  is  evidence  as  well  of  pub-  in  point  of  time,  of  the  intention  not  to 

lie  and  general  customs  or  practices  as  be  bound  by  the  customary  law.     Ibid. 

of  private  rights)  is  sufficient  to  sustain  and  1  Chitty's  Criminal  Law  29,  35,  92. 

the  same. — C.  — C. 
62 


OF  THE   LAW  OF  NATIONS. 

These  three   kinds  of  law  of  nations,  the  Voluntary,  the 
Conventional,  and   the  Customary,  together   constitute   the 
Positive  Law  of  Nations.(lQ)     For   they  all  proceed  from  ?.27-    -Po*f- 
the  will  of  Nations ;  the  Voluntary  from  their  presumed  co 
sent,  the   Conventional  from   an  express   consent,  ami  the 
Customary  from  tacit  consent ;  and  as  there  can  be  no  other 
mode  of  deducing  any  law  from  the  will  of  nations,  there  are 
only  these  three  kinds  of  Positive  Law  of  Nations. 

We  shall  be  careful  to  distinguish  them  from  the  Natural 
or  Necessary  law  of  nations,  without,  however,  treating  of 
them  separately.  But  after  having,  under  each  individual 
head  of  our  subject,  established  what  the  Necessary  law  pre- 
scribes, we  shall  immediately  add  how  and  why  the  decisions 
of  that  law  must  be  modified  by  the  Voluntary  law ;  or  (which 
amounts  to  the  same  thing  in  other  terms)  we  shall  explain 
how,  in  consequence  of  the  liberty  of  nations,  and  pursuant 
to  the  rules  of  their  natural  society,  the  external  law  which 
they  are  to  observe  towards  each  other  differs  in  certain  in- 
stances from  the  maxims  of  the  Internal  law,  which  never- 
theless remains  always  obligatory  in  point  of  conscience.  As 
to  the  rights  introduced  by  Treaties  or  by  Custom,  there  is 
no  room  to  apprehend  that  any  one  will  confound  them  with 
the  Natural  law  of  nations.  They  form  that  species  of  law 
of  nations  which  authors  have  distinguished  by  the  name  of 
Arbitrary. 

To  furnish  the  reader  beforehand  with  a  general  direction  g  28.  Gene- 
respecting  the   distinction   between   the  Necessary  and  theralma^im 
Voluntary  law,  let  us  here  observe,  that,  as  the  Necessary  JJ^^f 
law  is  always  obligatory  on  the  conscience,  a  nation  ought  the  neces- 
never  to  lose  sight  of  it  in  deliberating  on  the  line  of  conduct  sary  and 
she  is  to  pursue  in  order  to  fulfil  her  duty ;  but  when  there the  volun- 
is  question  of  examining  what   she   may  demand  of  other tory  law* 
states,  she  must  consult  the  Voluntary  law,  whose  maxims 
are  devoted  to  the  safety  and  advantage  of  the  universal 
society  of  mankind. 

(10)  See  Division  of  Laws  of  Nations,  ante,  IviL  n.  (2).— C. 


BOOK  I. 

OF  NATIONS  CONSIDERED  IN  THEMSELVES. 


CHAP.  I. 

OF  NATIONS   OR   SOVEREIGN   STATES.(IO) 

A  NATION  or  a  state  is,  as  has  been  said  at  the  beginning  §  1.    Of  the 
of  this  work,  a  body  politic,  or  a  society  of  men  united  t°- 
gether  for  the  purpose  of  promoting  their  mutual  safety  and 
advantage  by  their  combined  strength. 

From  the  very  design  that  induces  a  number  of  men  to  form 
a  society  which  has  its  common  interests,  and  which  is  to  act 
in  concert,  it  is  necessary  that  there  should  be  established  a 
Public  Authority,  to  order  and  direct  what  is  to  be  done  by 
each  in  relation  to  the  end  of  the  association.  This  political 
authority  is  the  Sovereignty ;  and  he  or  they  who  are  in- 
vested with  it  are  the  Sovereign.(1.Q) 

It  is  evident,  that,  by  the  very  act  of  the  civil  or  political  §  2.    The 
association,  each  citizen  subjects  himself  to  the  authority  of  authority  °f 
the  entire  body,  in  every  thing  that  relates  to  the  common  p0iiti°  0^er 
welfare.     The  authority  of  all  over  each  member,  therefore,  the  mem- 
essentially  belongs  to  the  body  politic,  or  state ;  but  the  ex-  bers. 
ercise  of  that  authority  may  be  placed  in  different  hands,  ac- 
cording as  the  society  may  have  ordained.  L  *  ] 

If  the  body  of  the  nation  keep  in  its  own  hands  the  em-  ? 3-    Of  the 
pire,  or  the  right  to  command,  it  is  a  Popular  government,  a  £?™*  of 
Democracy  ;  if  it  intrust  it  to  a  certain  number  of  citizens,  vernment. 
to  a  senate,  it  establishes  an  Aristocratic  republic ;  finally,         . 
if  it  confide  the  government  to  a  single  person,  the  state  be- 
comes a  Monarchy. .(11.) 

These  three  kinds  of  government  may  be  variously  com- 
bined and  modified.  We  shall  not  here  enter  into  the  par- 

(10)  The  student  desirous  of  enlarg-  ferent  Governments ;  and  see  Cours  do 

ing  his   knowledge   upon   this   subject  Droit  Public  Interne  et  Externe,  Paris, 

should  read  Locke  on  Government;  De  A.  D.  1830. — C. 

Lolme  on  the  Constitution;  1  Bla.  Com.         (11)  See  the  advantages  and  disad- 

47  ;  Sedgwick's  Commentaries  thereon ;  vantages  of  each  of  those  forms  of  go- 

and  Chitty  Junior's  Prerogatives  of  the  vernment   shortly    considecfjfL      1  Bla. 

Crown  as  regards  Sovereignty  and  dif-  Com.  49J  50. — C. 

o  F2  65 


2  OF   NATIONS,    OR 

BOOK  i.     ticulars ;  this  subject  belonging  to  the  public  universal  law  ;* 
. CHAP>  *•    for  the  object  of  the  present  work,  it  is  sufficient  to  establish 
the  general  principles  necessary  for  the  decision  of  those  dis- 
putes that  may  arise  between  nations. 

g  4.    What       Every  nation  that  governs  itself,  under  what  form  soever, 
are  sove-      without  dependence  on  any  foreign  power,  is  a  Sovereign 
reign  states,  fitafa.     Its  rights  are  naturally,  the  same  as  those  of  any  other 
state.     Such  are  the  moral  persons  who  live  together  in  a 
natural  society,  subject  to  the  law  of  nations.     To  give  a  na- 
tion a  right  to  make  an  immediate  figure  in  this  grand  society, 
it  is  sufficient  that  it  be  really  sovereign  and  independent, 
that  is,  that  it  govern  itself  by  its  own  authority  and  la\vs. 
g  5.    Of          We  ought,  therefore,  to  account  as  sovereign  states  those 
states  bound  which  have  united  themselves  to  another  more  powerful,  by 
by  unequal  an  unequal  alliance,  in  which,  as  Aristotle  says,  to  the  more 
alliance.       powerful  is  given  more  honour,  and  to  the  weaker,  more  as- 
sistance. 

The  conditions  of  those  unequal  alliances  may  be  infinitely 
varied.  But  whatever  they  are,  provided  the  inferior  ally 
reserve  to  itself  the  sovereignty,  or  the  right  of  governing  its 
own  body,  it  ought  to  be  considered  as  an  independent  state, 
that  keeps  up  an  intercourse  with  others  under  the  authority 
of  the  law  of  nations. 

2  6.    Or  by       Consequently  a  weak  state,  which,  in  order  to  provide  for 
treaties  of    its  safety,  places  itself  under  the  protection  of  a  more  power- 
protection.    fui  On6j  an(j  engages,  in  return,  to  perform  several  offices 
£  3  ]     equivalent  to  that  protection,  without  however  divesting  itself 
of  the  right  of  government  and  sovereignty, — that   state,  I 
say,  does  not,  on  this  account,  cease  to  rank  among  the  sove- 
reigns who  acknowledge  no  other  law  than  that  of  nations.  (12) 

*  Nor  shall  we  examine  which  of  minished  through  your  fault."  "  True," 
those  different  kinds  of  government  is  replied  the  king :  "  I  shall  leave  them 
the  best.  It  will  be  sufficient  to  say  a  smaller  portion  of  it;  but  it  will 
in  general,  that  the  monarchical  form  rest  upon  a  firmer  basis."  The  Lace- 
appears  preferable  to  every  other,  pro-  daemonians,  during  a  certain  period, 
vided  the  power  of  the  sovereign  be  had  two  chiefs  to  whom  they  very  im- 
limited,  and  not  absolute, — qui  [prin-  properly  gave  the  title  of  kings.  They 
cipatus]  turn  demum  regius  est,  si  in-  were  magistrates,  who  possessed  a  very 
tra  modestiae  et  mediocritatis  fines  so  limited  power,  and  whom  it  was  not 
contineat,  excessu  potestatis,  quam  im-  unusual  to  cite  before  the  tribunal  of 
prudentes  in  dies  augere  satagunt,  justice, — to  arrest, — to  condemn  to 
minuitur,  penitusque  corrunipitur,  Nos  death. — Sweden  acts  with  less  impro- 
stulti,  majoris,  potentials  specie  decepti,  priety  in  continuing  to  bestow  on  he* 
dilabimur  in  contrarium,  non  satis  chief  the  title  of  king,  although  she  hw 
considerantes  earn  demum  tutam  esso  circumscribed  his  power  within  very 
potentiam  quae  viribus  modum  imponit.  narrow  bounds.  IIo  shares  not  hie 
The  maxim  has  both  truth  and  wisdom  authority  with  a  colleague, — he  is 
on  its  side.  The  author  here  quotes  hereditary, — and  the  state  has,  from 
the  saying  of  Theopompus,  king  of  time  immemorial,  borne  the  title  of  a 
Sparta,  who,  returning  to  his  house  kingdom. — Edit.  A.  D.  1797. 
amidst  the  acclamations  of  the  peo-  (12)  This  and  other  rules  respect- 
pie,  after  the  establishment  of  the  ing  smaller  states  sometimes  form  the 
Ephori — "  You  will  leave  to  your  chil-  subject  of  consideration  even  in  the 
dren  (said  his  wife)  an  authority  di-  Municipal  Courts.  In  case  of  a  re- 
66 


SOVEREIGN   STATES. 


There  occurs  no  greater  difficulty  with  respect  to  tributary     BOOK  i. 
states ;  for  though  the  payment  of  tribute  to  a  foreign  power    CHAP-  *' 

i  •  1  1-       •_•    1_    J.-L  -     J: :± C  j.1 _     I». 


does  in  some  degree  diminish  the  dignity  of  those  states,  from  2  5'  C 
its  being  a  confession  of  their  weakness, — yet  it  suffers  their  g^teSUry 
sovereignty  to  subsist  entire.  The  custom  of  paying  tribute 
was  formerly  very  common, — the  weaker  by  that  means  pur- 
chasing of  their  more  powerful  neighbour  an  exemption  from 
oppression,  or  at  that  price  securing  his  protection,  without 
ceasing  to  be  sovereigns. 

The  Germanic  nations  introduced   another  custom — that  §8.   Of 
of  requiring  homage  from  a  state  either  vanquished,  or  too  feudatory 
weak  to  make  resistance.      Sometimes  even,  a  prince  hasstates' 
given  sovereignties  in  fee,  and  sovereigns  have  voluntarily 
rendered  themselves  feudatories  to  others. 

\    \  When  the  homage  leaves  independency  and  sovereign  au- 
thority in  the  administration  of  the  state,  and  only  means 
certain  duties  to  the  lord  of  the  fee,  or  even  a  mere  honorary 
.   acknowledgment,  it  does  not  prevent  the  state  or  the  feuda- 

J    tory  prince  being  strictly  sovereign.     The  king  of  Naples 

•     pays  homage  for  his  kingdom  to  the  pope,  and  is  nevertheless 

V     reckoned  among  the  principal  sovereigns  of  Europe. 

Two  sovereign  states  may  also  be  subject  to  the  same  §9.    Of  two 
prince,  without  any  dependence  on  each  other,  and  each  may  *totes  sub- 
retain  all  its  rights  as  a  free  and  sovereign  state.     The  king^J0^^ 
of  Prussia  is  sovereign  prince  of  Neufchatel  in  Switzerland, 
without  that  principality  being  in  any  manner  united  to  his 
other  dominions ;  so  that  the  people  of  Neufchatel,  in  virtue 
of  their  franchises,  may  serve  a  foreign  power  at  war  with 
the  king  of  Prussia,  provided  that  the  war  be  not  on  account 
of  that  principality. 

Finally,  several  sovereign   and   independent   states   may  §  10.    Of 
unite  themselves  together  by  a  perpetual  confederacy,  with-  ftates  form- 
out  ceasing  to  be,  each  individually,  a  perfect  state.     Theyinr 
will  together  constitute  a  federal  republic:   their  joint  de- 
liberations will  not  impair  the  sovereignty  of  each  member, 
though  they  may,  in  certain  respects,  put  some  restraint  on 
the  exercise  of  it,  in  virtue  of  voluntary  engagements.    A  per- 
son does  not  cease  to  be  free  and  independent,  when  he  is  obliged 
to  fulfil  engagements  which  he  has  voluntarily  contracted. 

Such  were  formerly  the  cities  of  Greece  ;  such  are  at  present 
the  Seven  United  Provinces  of  the  Netherlands,(13)  and  such 
the  members  of  the  Helvetic  body. 

volted  colony,  or  part  of  a   parent  or  Thompson  v.  Powles,  2  Sim.  Rep.  202  ; 

principal  state,    no  subject   of   another  Yrisarri  v.  Clement,  2  Car.  &  P.  223; 

state  can  legally  make  a  contract  with  11  B.  Moore,  308;   3  Bing.  432;   and 

it  or  assist  the  same  without  leave  of  post. — C.  {  The  United  States  v.  Palmer, 

his  own    government,  before   its  sepa-  3  Wheat  610.     See  Cherriot  v.  Foussat, 

rate     independence    has    been    recog-  3  Binn.  252.} 

nised  by  his  own   government.      Jones  (13)  Of  course,  the  words  "  at  pre- 

v.  Garcia  del  Rio,  1  Turn.  &  Russ.  297 ;  sent"    refer     only    to    the    time    when 

67 


3  GENERAL  PRINCIPLES   OP 

BOOK  i.  But  a  people  that  has  passed  under  the  dominion  of  an- 
.  CHAP'  *•  other  is  no  longer  a  state,  and  can  no  longer  avail  itself  directly 
g  11.  Of  a  Of  the  law  of  nations.  Such  were  the  nations  and  kingdoms 
state  that  ^^  the  Romans  rendered  subject  to  their  empire ;  the 

has  passed  ,.  «»i  i  11  •>       •  t      i 

under  the     generality  even  of  those  whom  they  honoured  with  the  name 

dominion  of  of  friends  and  allies  no  longer  formed  real  states.     Within 

another.       themselves  they  were  governed  by  their  own  laws  and  magis- 

[  4  ]    trates  ;  but  without,  they  were  in  every  thing  obliged  to  follow 

the  orders  of  Rome ;  they  dared  not  of  themselves  either  to 

make  war  or  contract  alliances ;   and  could  not  treat  with 

nations. 

\  12.  The  The  law  of  nations  is  the  law  of  sovereigns ;  free  and  inde- 
objects  of  pendent  states  are  moral  persons,  whose  rights  and  obligations 
this  treatise.  ^Q  are  ^Q  estakiisn  j,n  this  treatise. 


CHAP.  II. 

CHAP,  n.     GENERAL  PRINCIPLES   OF   THE   DUTIES   OF  A  NATION  TOWARDS 

ITSELF. 

£  13.  A  na-     IF  the  rights  of  a  nation  spring  from  its  obligations,  it  is 

to°actUaSbt  PrinciPally  from  those  tb-at  relate  to  itself-  Jt  wil1  further 
gre'eabiy  to  appear,  that  its  duties  towards  others  depend  very  much  on 
its  nature,  its  duties  towards  itself,  as  the  former  are  to  be  regulated 
(14)  and  measured  by  the  latter.  As  we  are  then  to  treat  of  the 

obligations  and  rights  of  nations,  an  attention  to  order  re- 
quires that  we  should  begin  by  establishing  what  each  nation 
owes  to  itself. 

The  general  and  fundamental  rule  of  our  duties  towards 
ourselves  is,  that  every  moral  being  ought  to  live  in  a  manner 
conformable  to  his  nature,  natures  convenienter  vivere.(14) 
A  nation  is  a  being  determined  by  its  essential  attributes, 
that  has  its  own  nature,  and  can  act  in  conformity  to  it. 
There  are  then  actions  of  a  nation  as  such,  wherein  it  is  con- 
cerned in  its  national  character,  and  which  are  either  suitable 

Vattel  wrote,  and  it  is  unnecessary  to  has    acquired    powers   far   beyond   its 

mention  otherwise  than  thus   cursorily  diminutive  extent.     These  being  esta- 

the  notorious  recent  changes. — C.  blished,  it  becomes   the   duty  of  such 

(14)  If    to     particularize     may     be  a   state,  and   of    those   exercising    the 

allowed,  we   may  instance    Great  Bri-  powers  of  government,  to  cultivate  and 

tain.      Comparatively,  with   regard   to  improve  these  natural  advantages ;  and 

dimensions,  it  would  be  but  an  insig-  in    that     view    the    ancient   exclusive 

nificant  state ;   but  with  regard   to  its  navigation    system,   constituting    Eng- 

insular   situation    and    excellent   ports,  land    the    carrier    of   Europe    and    the 

and  its  proximity  to  Europe,  and  above  world,  were  highly  laudable ;  and  it  is 

all   the    singularly  manly,    brave,  and  to  be  hoped  that  a  return  of  the  system, 

adventurous   character    of  its   natives,  injudiciously  abandoned,  mil  ere  long 

it  has  been  capable   of  acquiring  and  take  place. — C. 
68 


CHAP. 


THE   DUTIES   OF  A   NATION,    ETC. 

or  opposite  to  what  constitutes  it  a  nation ;  so  that  it  is  not     BOOK  i. 
a  matter  of  indifference  whether  it  performs  some  of  those . 
actions,  and  omits  others.    In  this  respect,  the  Law  of  Nature 
prescribes  it  certain  duties.     We  shall  see,  in  this  first  hook, 
what  conduct  a  nation  ought  to  observe,  in  order  that  it  may 
not  be  wanting  to  itself.     But  we  shall  first  sketch  out  a 
general  idea  of  this  subject. 

He  who  no  longer  exists  can  have  no  duties  to  perform :  and  ?  u.   of 
a  moral  being  is  charged  with  obligations  to  himself,  only  with the  preser- 
a  view  to  his  perfection  and  happiness :  for  to  preserve  and  to  perfection* 
perfect  his  own  nature,  is  the  sum  of  all  his  duties  to  himself.  Of  a  nation. 

The  preservation  of  a  nation  consists  in  the  duration  of  the 
political  association  by  which  it  is  formed.  If  a  period  is 
put  to  this  association,  the  nation  or  state  no  longer  subsists, 
though  the  individuals  that  composed  it  still  exist. 

The  perfection  of  a  nation  is  found  in  what  renders  it 
capable  of  obtaining  the  end  of  civil  society ;  and  a  nation  is 
in  a  perfect  state,  when  nothing  necessary  is  wanting  to  arrive 
at  that  end.  We  know  that  the  perfection  of  a  thing  con- 
sists, generally,  in  the  perfect  agreement  of  all  its  constituent 
parts  to  tend  to  the  same  end.  A  nation  being  a  multitude 
of  men  united  together  in  civil  society — if  in  that  multitude 
all  conspire  to  attain  the  end  proposed  in  forming  a  civil 
society,  the  nation  is  perfect ;  and  it  is  more  or  less  so, 
according  as  it  approaches  more  or  less  to  that  perfect  agree-  [  5  ] 
ment.  In  the  same  manner  its  external  state  will  be  more 
or  less  perfect,  according  as  it  concurs  with  the  interior  per- 
fection of  the  nation. 

The  end  or  object  of  civil  society  is  to  procure  for  the  § 15-   What 
citizens  whatever  they  stand  in  need  of  for  the  necessities,  j^!je  en.d  of 
the  conveniences,  the  accommodation  of  life,  and,  in  general, c" 
whatever  constitutes  happiness, — with  the  peaceful  possession 
of  property,  a  method  of  obtaining  justice  with  security,  and, 
finally,  a  mutual  defence  against  all  external  violence. 

It  is  now  easy  to  form  a  just  idea  of  the  perfection  of  a 
state  or  nation : — every  thing  in  it  must  conspire  to  promote 
the  ends  we  have  pointed  out. 

In  the  act  of  association,  by  virtue  of  which  a  multitude  §  16.   A  na- 
of  men  form  together  a  state  or  nation,  each  individual  has tion  is  under 
entered  into  engagements  with  all,  to  promote  the  general  J ."n° ^ig*' 
welfare ;  and  all  have  entered  into  engagements  with  each  Se°  velteeH. 
individual,  to  facilitate  for  him  the  means  of  supplying  his 
necessities,  and  to  protect  and  defend  him.     It  is  manifest 
that  these  reciprocal  engagements  can  no  otherwise  be  fulfilled 
than  by  maintaining  the  political  association.     The  entire 
nation  is  then  obliged  to  maintain  that  association ;  and  as 
their   preservation   depends   on   its    continuance,  it   thence 
follows  that  every  nation  is  obliged  to  perform  the  duty  of 
self-preservation. 

This  obligation,  so  natural  to  each  individual  of  God's 


5  GENERAL   PRINCIPLES   OP 

BOOK  i.  creation,  is  not  derived  to  nations  immediately  from  nature, 
CHAP>  "'  but  from  the  agreement  by  which  civil  society  is  formed :  it 
is  therefore  not  absolute,  but  conditional, — that  is  to  say,  it 
supposes  a  human  act,  to  wit,  the  social  compact.  And  as 
compacts  may  be  dissolved  by  common  consent  of  the  parties 
— if  the  individuals  that  compose  a  nation  should  unanimously 
agree  to  break  the  link  that  binds  them,  it  would  be  lawful 
for  them  to  do  so,  and  thus  to  destroy  the  state  or  nation ; 
but  they  would  doubtless  incur  a  degree  of  guilt,  if  they  took 
this  step  without  just  and  weighty  reasons  ;  for  civil  societies 
are  approved  by  the  Law  of  Nature,  which  recommends  them 
to  mankind,  as  the  true  means  of  supplying  all  their  wants, 
and  of  effectually  advancing  towards  their  own  perfection. 
Moreover,  civil  society  is  so  useful,  nay  so  necessary  to  all 
citizens,  that  it  may  well  be  considered  as  morally  impossible 
for  them  to  consent  unanimously  to  break  it  without  necessity. 
But  what  citizens  may  or  ought  to  do — what  the  majority  of 
them  may  resolve  in  certain  cases  of  necessity  or  of  pressing 
exigency — are  questions  that  will  be  treated  of  elsewhere : 
they  cannot  be  solidly  determined  without  some  principles 
which  we  have  not  yet  established.  For  the  present,  it  is 
sufficient  to  have  proved,  that,  in  general,  as  long  as  the  poli- 
tical society  subsists,  the  whole  nation  is  obliged  to  endeavour 
to  maintain  it. 

§  17.   And       If  a  nation  is  obliged  to  preserve  itself,  it  is  no  less  obliged 
to  preserve  carefuijy  to  preserve  all  its  members.     The  nation  owes  this 
!rs'  to  itself,  since  the  loss  even  of  one  of  its  members  weakens  it, 
and  is  injurious  to  its  preservation.     It  owes  this  also  to  the 
members  in  particular,  in  consequence  of  the  very  act  of  asso- 
ciation ;  for  those  who  compose  a  nation  are  united  for  their 
j]  6  ]     defence  and  common  advantage ;  and  none  can  justly  be  de- 
prived of  this  union,  and  of  the  advantages  he  expects  to  de- 
rive from  it,  while  he  on  his  side  fulfils  the  conditions.(15) 

The  body  of  a  nation  cannot  then  abandon  a  province,  a 

town,  or  even  a  single  individual  who  is  a  part  of  it,  unless 

compelled  to  it  by  necessity,  or  indispensably  obliged  to  it  by 

the  strongest  reasons  founded  on  the  public  safety.(16) 

1 18.  A  na-     Since  then  a  nation  is  obliged  to  preserve  itself,  it  has  a 

tion  has  a    right  to  every  tiling  necessary  for  its  preservation.     For  the 

ever*  Thin    ^aw  °^  ^ature  giyes  us  a  right  to  every  thing  without  which 

necessary^  we  cannot  fulfil  our  obligation ;  otherwise  it  would  oblige  us 

(15)  This  principle    is    in    every  re-  self.     This  is  the  principle  upon  which 

spect   recognised    and    acted   upon    by  is  founded  the  rule  "  Nemo  potent  cxuerc 

our  municipal  law.     It  is  in  respect  of,  patriam,"    Calvin's  case,   7    Coke,  25 , 

and  as  a  due  return  for,  the  protection  Co.  Lit   129,  a;    and   see    an  interest- 

every  natural  born   subject  is   entitled  ing  application   of  that  rule    in  Mac- 

to,  and  actually  does,  by  law,  receive  donald's    case,   Forster's    Crown    Law. 

from  the  instant  of  his  birth,  that  all  59. — C. 

the    obligations    of    allegiance    attach         (16)  In  tracing  the  consequences  of 

upon  him,  and  from  which  he  cannot  this  rule,  we  shall  hereafter  perceive  how 

by  any  act  of  his  own  emancipate  him-  important  is  the  rule  itself. — C. 
70 


THE   DUTIES   OF  A  NATION,  ETC.  O 

to  do  impossibilities,  or  rather  would  contradict  itself  in  pre-     BOOK  i. 
scribing  us  a  duty,  and  at  the  same  time  debarring  us  of  the    CHAf'  "'• 
only  means  of  fulfilling  it.     It  will  doubtless  be  here  under- 
stood, that  those  means  ought  not  to  be  unjust  in  themselves, 
or  such  as  are  absolutely  forbidden  by  the  Law  of  Nature. 
As  it  is  impossible  that  it  should  ever  permit  the  use  of  such 
means, — if  on  a  particular  occasion  no  other  present  them- 
selves for  fulfilling  a  general  obligation,  the  obligation  must, 
in  that  particular  instance,  be  looked  on  as  impossible,  and 
consequently  void. 

By  an  evident  consequence  from  what  has  been  said,  a  na-  g  19.   it 
tion  ought  carefully  to  avoid,  as  much  as  possible,  whatever  ought  to 
might  cause  its  destruction,  or  that  of  the  state,  which  is  the  ta™id  *™^ 
same  thing.  might  oec* 

A  nation  or  state  has  a  right  to  every  thing  that  can  help  sion  its  de- 
to  ward  off  imminent  danger,  and  keep  at  a  distance  whatever  struction. 
is  capable  of  causing  its  ruin ;  and  that  from  the  very  same  ?  20:    Of 
reasons  that  establish  its  right  to  the  things  necessary  to  its  everything 
preservation.  (17)  that  may 

The  second  general  duty  of  a  nation  towards  itself  is  to  promote 
labour  at  its  own  perfection  and  that  of  its  state.     It  is  this  *h"  end- 
double  perfection  that  renders  a  nation  capable  of  attaining  |on  'ough°a~. 
the   end  of  civil   society :    it  would   be   absurd  to  unite  in  to  perfect 
society,  and  yet  not  endeavour  to  promote  the  end  of  that  itself  and 
union  *••**• 

Here  the  entire  body  of  a  nation,  and  each  individual  citi- 
zen, are  bound  by  a  double  obligation,  the  one  immediately 
proceeding  from  nature,  and  the  other  resulting  from  their 
reciprocal  engagements.  Nature  lays  an  obligation  upon  each 
man  to  labour  after  his  own  perfection ;  and  in  so  doing,  he 
labours  after  that  of  civil  society,  which  could  not  fail  to  be 
very  flourishing,  were  it  composed  of  none  but  good  citizens. 
But  the  individual  finding  in  a  well-regulated  society  the  most 
powerful  succours  to  enable  him  to  fulfil  the  task  which  Na- 
ture imposes  upon  him  in  relation  to  himself,  for  becoming 
better,  and  consequently  more  happy — he  is  doubtless  obliged 
to  contribute  all  in  his  power  to  render  that  society  more 
perfect. 

All  the  citizens  who  form  a  political  society  reciprocally 
engage  to  advance  the  common  welfare,  and  as  far  as  possi-  [  7  ] 
ble  to  promote  the  advantage  of  each  member.  Since  then 
the  perfection  of  the  society  is  what  enables  it  to  secure 
equally  the  happiness  of  the  body  and  that  of  the  members, 
the  grand  object  of  the  engagements  and  duties  of  a  citizen 
is  to  aim  at  this  perfection.  This  is  more  particularly  the 

(17)    Salus  popnli   suprema    eat  lex.     the  property  of  any  private  individual. 
Upon    this  principle  it  has  been  esta-     See  Governors,  <fcc.  v.  Meredith,  4  Term 
blished,   that    for  national   defence    in     Eep.  796-7.— C. 
war,  it  is  legal  to  pull  down  or  injure 

71 


BOOK   I. 
CHAP.    II. 

g  22.  And  to 
avoid  every 
thing  con- 
trary to  its 
perfection. 
§23.    The 
rights  it  de- 
rives from 
these  obli- 
gations. 
2  24.    Ex- 
amples. 


GENERAL   PRINCIPLES   OF 

duty  of  the  body  collective  in  all  their  common  deliberations, 
and  in  every  thing  they  do  as  a  body.(18) 

A  nation  therefore  ought  to  prevent,  and  carefully  to  avoid, 
whatever  may  hinder  its  perfection  and  that  of  the  state,  or 
retard  the  progress  either  of  the  one  or  the  other.(19) 

We  may  then  conclude,  as  we  have  done  above  in  regard  to 
the  preservation  of  a  state  (§  18),  that  a  nation  has  a  right  to 
every  thing  without  which  it  cannot  attain  the  perfection  of 
the  members  and  of  the  state,  or  prevent  and  repel  whatever 
is  contrary  to  this  double  perfection. 

On  this  subject,  the  English  furnish  us  an  example  highly 
worthy  of  attention.  That  illustrious  nation  distinguishes 
itself  in  a  glorious  manner  by  its  application  to  every  thing 
that  can  render  the  state  more  flourishing.  An  admirable 
constitution  there  places  every  citizen  in  a  situation  that  ena- 
bles him  to  contribute  to  this  great  end,  and  everywhere  dif- 
fuses that  spirit  of  genuine  patriotism  which  zealously  exerts 
itself  for  the  public  welfare.  We  there  see  private  citizens 
form  considerable  enterprises,  in  order  to  promote  the  glory 
and  welfare  of  the  nation.  And  while  a  bad  prince  would 
find  his  hands  tied  up,  a  wise  and  moderate  king  finds  the 
most  powerful  aids  to  give  success  to  his  glorious  designs. 
The  nobles  and  the  representatives  of  the  people  form  a  link 
of  confidence  between  the  monarch  and  the  nation,  and,  con- 
curring with  him  in  every  thing  that  tends  to  promote  the 
public  welfare,  partly  ease  him  of  the  burden  of  government, 
give  stability  to  his  power,  and  procure  him  an  obedience  the 
more  perfect,  as  it  is  voluntary.  Every  good  citizen  sees  that 
the  strength  of  the  state  is  really  the  advantage  of  all,  and 
not  that  of  a  single  person. (20)  Happy  constitution  !  which 
they  did  not  suddenly  obtain :  it  has  cost  rivers  of  blood ;  but 
they  have  not  purchased  it  too  dear.  May  luxury,  that  pest 
so  fatal  to  the  manly  and  patriotic  virtues,  that  minister  of 
corruption  so  dangerous  to  liberty,  never  overthrow  a  monu- 
ment that  does  so  much  honour  to  human  nature — a  monu- 
ment capable  of  teaching  kings  how  glorious  it  is  to  rule  over 
a  free  people ! 


(18)  In  a  highly  intelligent  and  cul- 
tivated society  like  England,  this  prin- 
ciple is  exemplified  in  an  extraordinary 
degree ;  for  in  the  legislative  assembly, 
members   of  parliament,  without    any 
private  interest  excepting  the  approba- 
tion of  their    countrymen,  almost  de- 
stroy themselves  by  exertion  in  discus- 
sing the  improvement  of  existing  regu- 
lations ;  and  this  indeed  even  to  excess 
as  regards    long    speeches,    sometimes 
even  counteracting  their  own  laudable 
endeavours. — C. 

(19)  See  Book  I.  chap,  xxiii.  g  283, 
72 


as  to  the  duty  of  all  nations  to  prevent 
the  violation  of  the  law  of  nations. — C. 
(20)  This  is  indeed  a  flattering  com- 
pliment from  Vattel,  a  foreigner;  but 
certainly  it  is  just;  for  although,  as  a 
commercial  nation,  it  might  be  sup- 
posed that  each  individual  principally 
labours  for  his  own  individual  gain; 
yet  when  we  refer  to  the  spirited  em- 
ployment of  capital  in  building  na- 
tional bridges,  canals,  rail-roads,  Ac. 
not  yielding  even  21.  per  cent.,  it  must 
be  admitted  that  great  public  spirit  for 
national  good  very  generally  prevails. 
— C. 


THE    DUTIES    OF   A   NATION,  ETC. 

There  is  another  nation  illustrious  by  its  bravery  and  its  BOOK  i. 
victories.  Its  numerous  and  valiant  nobility,  its  extensive  CH*P'  "' 
and  fertile  dominions,  might  render  it  respectable  throughout 
all  Europe,  and  in  a  short  time  it  might  be  in  a  most  flourish- 
ing situation,  but  its  constitution  opposes  this;  and  such  is 
its  attachment  to  that  constitution,  that  there  is  no  room  to 
expect  a  proper  remedy  will  ever  be  applied.  In  vain  might 
a  magnanimous  king,  raised  by  his  virtues  above  the  pursuits 
of  ambition  and  injustice,  form  the  most  salutary  iesigns  for  [  8  ] 
promoting  the  happiness  of  his  people ; — in  vain  might  those 
designs  be  approved  by  the  more  sensible  part,  by  the  ma- 
jority of  the  nation ; — a  single  deputy,  obstinate,  or  corrupted 
by  a  foreign  power,  might  put  a  stop  to  all,  and  disconcert 
the  wisest  and  most  necessary  measures.  From  an  excessive 
jealousy  of  its  liberty,  that  nation  has  taken  such  precautions 
as  must  necessarily  place  it  out  of  the  power  of  the  king  to 
make  any  attempts  on  the  liberties  of  the  public.  But  is  it 
not  evident  that  those  precautions  exceed  the  end  proposed, 
— that  they  tie  the  hands  of  the  most  just  and  wise  prince, 
and  deprive  him  of  the  means  of  securing  the  public  freedom 
against  the  enterprises  of  foreign  powers,  and  of  rendering 
the  nation  rich  and  happy  ?  Is  it  not  evident  that  the  nation 
has  deprived  itself  of  the  power  of  acting,  and  that  its  coun- 
cils are  exposed  to  the  caprice  or  treachery  of  a  single  member  ? 

We  shall  conclude  this  chapter,  with  observing  that  a  §  25.  A  n 
nation  ought  to  know  itself. (21)  Without  this  knowledge  ittionought 
cannot  make  any  successful  endeavours  after  its  own  per-  IJ 
fection.  It  ought  to  have  a  just  idea  of  its  state,  to  enable 
it  to  take  the  most  proper  measures ;  it  ought  to  know  the 
progress  it  has  already  made,  and  what  further  advances  it 
has  still  to  make, — what  advantages  it  possesses,  and  what 
defects  it  labours  under,  in  order  to  preserve  the  former,  and 
correct  the  latter.  Without  this  knowledge  a  nation  will  act 
at  random,  and  often  take  the  most  improper  measures.  It 
will  think  it  acts  with  great  wisdom  in  imitating  the  conduct 
of  nations  that  are  reputed  wise  and  skilful, — not  perceiving 
that  such  or  such  regulation,  such  or  such  practice,  though 
salutary  to  one  state,  is  often  pernicious  to  another.  Every 
thing  ought  to  be  conducted  according  to  its  nature.  Nations 
cannot  be  well  governed  without  such  regulations  as  are 
suitable  to  their  respective  characters ;  and  in  order  to  this, 
their  characters  ought  to  be  known. 

(21)  This  is  one  of  the  soundest  and  true  wisdom.    Every  moral  and  wise 

most  important  principles  that  can  be  man  should  enlarge  on  this  principle, 

advanced,  whether  it  refers  to  individu-  and  among  others  study  that  excellent, 

als  or  to  nations,  and  is  essential  even  but  too  little  known,  work,  Mason  on 

to  the  attainment  of  the  rudiments  of  Self- Knowledge. 


10  <J  73 


OF   THE   CONSTITUTION   OF  A   STATE. 


BOOK  I. 
CHAP.    III. 


CHAP.  III. 

OF    THE    CONSTITUTION    OF    A    STATE,    AND    THE    DUTIES    AND 
RIGHTS   OF   THE   NATION   IN   THIS   RESPECT. 

"WE  were  unable  to  avoid,  in  the  first  chapter,  anticipating 
something  of  the  subject  of  this." 

1 26.    Of         We  have  seen  already  that  every  political  society  must 

public  au-    necessarily  establish  a  public  authority  to  regulate  their  com- 

thonty'        mon  affairs, — to  prescribe  to  each  individual  the  conduct  he 

ought  to  observe  with  a  view  to  the  public  welfare,  and  to 

possess  the  means  of  procuring  obedience.     This  authority 

essentially  belongs  to  the  body  of  the  society ;  but  it  may  be 

exercised  in  a  variety  of  ways ;  and  every  society  has  a  right 

'to  choose  that  mode  which  suits  it  best. 

$  27.   What      The  fundamental  regulation  that  determines  the  manner  in 

is  the  con-    which  the  public  authority  is  to  be  executed,  is  what  forms 

stitution  of  the  constitution  of  the  state.     In  this  is  seen  the  form  in 

a  state.        which  the  nation  acts  in  quality  of  a  body  politic, — how  and 

[  9  ]     by  whom  the  people  are  to  be  governed, — and  what  are  the 

rights  and  duties  of  the  governors.     This  constitution  is  in 

fact  nothing  more  than  the  establishment  of  the  order  in 

which  a  nation  proposes  to  labour  in  common  for  obtaining 

those  advantages  with  a  view  to  which  the  political  society 

was  established. 

§  28.    The        The  perfection  of  a  state,  and  its  aptitude  to  attain  the  ends 
nation          Of  society,  must  then  depend  on  its  constitution  :  consequently 
choosVthe    ^  most  important  concern  of  a  nation  that  forms  a  political 
best  consti-  society,  and  its  first  and  most  essential  duty  towards  itself,  is 
tution.         to  choose  the  best  constitution  possible,  and  that  most  suita- 
ble to  its  circumstances.     When  it  makes  this  choice,  it  lays 
the  foundation  of  its  own  preservation,  safety,  perfection,  and 
happiness : — it  cannot  take  too  much  care  in  placing  these  on 
a  solid  basis. 

g  29.    Of         The  laws  are  regulations  established  by  public  authority, 
political,      to  be  observed  in  society.     All  these  ought  to  relate  to  the 

welfare  of  the  state  and  of  the  citizens-  Tne  laws  ma(*e  di- 
rectly  with  a  view  to  the  public  welfare  are  political  laws;  and 
in  this  class,  those  that  concern  the  body  itself  and  the  being 
of  the  society,  the  form  of  government,  the  manner  in  which 
the  public  authority  is  to  be  exerted, — those,  in  a  word,  which 
together  form  the  constitution  of  the  state,  are  the  funda- 
mental laws. 

The  civil  laws  are  those  that  regulate  the  rights  and  con- 
duct of  the  citizens  among  themselves. 

Every  nation  that  would  not  be  wanting  to  itself,  ought  to 
apply  its  utmost  care  in  establishing  these  laws,  and  princi- 
pally its  fundamental  laws, — in  establishing  them,  I  say,  with 

74 


OF   THE   CONSTITUTION   OF   A   STATE.  9 

wisdom,  in  a  manner  suitable  to  the  genius  of  the  people,  and  BOOK  *• 
to  all  the  circumstances  in  which  they  may  be  placed :  they  CHAP- m- 
ought  to  determine  them  and  make  them  known  with  plain- 
ness and  precision,  to  the  end  that  they  may  possess  stability, 
that  they  may  not  be  eluded,  and,  that  they  may  create,  if 
possible,  no  dissension — that,  on  the  one  hand,  he  or  they 
to  whom  the  exercise  of  the  sovereign  power  is  committed, 
and  the  citizens,  on  the  other,  may  equally  know  their  duty 
and  their  rights.  It  is  not  here  necessary  to  consider  in  de- 
tail what  that  constitution  and  those  laws  ought  to  be :  that 
discussion  belongs  to  public  law  and  politics.  Besides,  the 
laws  and  constitutions  of  different  states  must  necessarily 
vary  according  to  the  disposition  of  the  people,  and  other  cir- 
cumstances. In  the  Law  of  Nations  we  must  adhere  to  gene- 
rals. We  here  consider  the  duty  of  a  nation  towards  itself, 
principally  to  determine  the  conduct  that  it  ought  to  observe 
in  that  great  society  which  nature  has  established  among  all 
nations.  These  duties  give  it  rights,  that  serve  as  a  rule  to 
establish  what  it  may  require  from  other  nations,  and  recipro- 
cally what  others  may  require  from  it. 

The  constitution  and  laws  of  a  state  are  the  basis  of  the  ?  30.  Of  the 
public  tranquillity,  the  firmest  support  of  political  authority,  8UPP°rt  of 
and  a  security  for  the  liberty  of  the  citizens.     But  this  con-  ^0°°^ 
stitution  is  a  vain  phantom,  and  the  best  laws  are  useless,  if  obedience 
they  be  not  religiously  observed :  the  nation  ought  then  to  to  the  laws, 
watch  very  attentively,  in  order  to  render  them  equally  re-    [  10  ] 
spected  by  those  who  govern,  and  by  the  people  destined  to 
obey.     To  attack  the  constitution  of  the  state,  and  to  violate 
its  laws,  is  a  capital  crime  against  society ;  and  if  those  guilty 
of  it  are  invested  with  authority,  they  add  to  this  crime  a 
perfidious  abuse  of  the  power  with  which  they  are  intrusted. 
The  nation  ought  constantly  to  repress  them  with  its  utmost 
vigour  and  vigilance,  as  the  importance  of  the  case  requires. 

It  is  very  uncommon  to  see  the  laws  and  constitution  of  a 
state  openly  and  boldly  opposed :  it  is  against  silent  and 
gradual  attacks  that  a  nation  ought  to  be  particularly  on  its 
guard.  Sudden  revolutions  strike  the  imaginations  of  men : 
they  are  detailed  in  history ;  their  secret  springs  are  deve- 
loped. But  we  overlook  the  changes  that  insensibly  happen 
by  a  long  train  of  steps  that  are  but  slightly  marked.  It 
would  be  rendering  nations  an  important  service  to  show  from 
history  how  many  states  have  thus  entirely  changed  their  na- 
ture, and  lost  their  original  constitution.  This  would  awaken 
the  attention  of  mankind: — impressed  thenceforward  with 
this  excellent  maxim  (no  less  essential  in  politics  than  in 
morals)  principiis  obsta, — they  would  no  longer  shut  their 
eyes  against  innovations,  which,  though  inconsiderable  in  them- 
selves, may  serve  as  steps  to  mount  to  higher  and  more  per- 
nicious enterprises. 

The  consequences  of  a  good  or  bad  constitution  being  of 


10  OF  THE   CONSTITUTION   OF   A   STATE. 

BOOK  i.  such  importance,  and  the  nation  being  strictly  obliged  to  pro- 
-  CHAP'  m'  cure,  as  far  as  possible,  the  best  and  most  convenient  one,  it 
§  si.  The  has  a  right  to  every  thing  necessary  to  enable  it  to  fulfil  this 
nation  'with  ODligati°n  (§  18).  It  is  then  manifest  that  a  nation  has  an 
respect  to  indisputable  right  to  form,  maintain,  and  perfect  its  constitu- 
its  consti-  tion,  to  regulate  at  pleasure  every  thing  relating  to  the  go- 
tution  and  vernment,  and  that  no  person  can  have  a  just  right  to  hinder 
men™'  ***  Government  is  established  only  for  the  sake  of  the  na- 
tion, with  a  view  to  its  safety  and  happiness. 

§  32.  it  If  any  nation  is  dissatisfied  with  the  public  administration, 
may  reform  ft  may  apply  the  necessary  remedies,  and  reform  the  govern- 
ment°Vern~  men*'  But  observe  that  I  say  "the  nation;"  for  I  am  very 
far  from  meaning  to  authorize  a  few  malcontents  or  incendia- 
ries to  give  disturbance  to  their  governors  by  exciting  mur- 
murs and  seditions.  None  but  the  body  of  a  nation  have  a 
right  to  check  those  at  the  helm  when  they  abuse  their  power. 
When  the  nation  is  silent  and  obeys,  the  people  are  con- 
sidered as  approving  the  conduct  of  their  superiors,  or  at  least 
finding  it  supportable ;  and  it  is  not  the  business  of  a  small 
number  of  citizens  to  put  the  state  in  danger,  under  the  pre- 
tence of  reforming  it. 

\  33.   And       In  virtue  of  the  same  principles,  it  is  certain  that  if  the 
may  change  nation  is  uneasy  under  its   constitution,  it  has  a  right  to 

tutioT^      cnange  it;- 

There  can  be  no  difficulty  in  the  case,  if  the  whole  nation 
be  unanimously  inclined  to  make  this  change.  But  it  is 
asked,  what  is  to  be  done  if  the  people  are  divided  ?  In  the 
[  11  ]  ordinary  management  of  the  state,  the  opinion  of  the  majority 
must  pass  without  dispute  for  that  of  the  whole  nation ; 
otherwise  it  would  be  almost  impossible  for  the  society  ever 
to  take  any  resolution.  It  appears  then,  by  parity  of  rea- 
soning, that  a  nation  may  change  the  constitution  of  the  state 
by  a  majority  of  votes  ;  and  whenever  there  is  nothing  in  this 
change  that  can  be  considered  as  contrary  to  the  act  of  civil 
association,  or  to  the  intention  of  those  united  under  it,  the 
whole  are  bound  to  conform  to  the  resolution  of  the  major- 
ity. (22)  But  if  the  question  be,  to  quit  a  form  of  govern- 
ment, to  which  alone  it  appeared  that  the  people  were  willing 
to  submit  on  their  entering  into  the  bonds  of  society, — if  the 
greater  part  of  a  free  people,  after  the  example  of  the  Jews 
in  the  time  of  Samuel,  are  weary  of  liberty,  and  resolved  to 
submit  to  the  authority  of  a  monarch, — those  citizens  who  are 
more  jealous  of  that  privilege,  so  invaluable  to  those  who 


(22)  In  1  Bla.  Com.  51-2,  it  is  con-  but  that  doctrine,  as  regards  the  moral 

tended,    that,    unless    in    cases    where  duty  to  observe  laws,  has  been  justly 

the    natural   law  or  conscience  dictates  refuted.        See     Sedgwick's     Commen- 

the    observance  of  municipal   laws,  it  taries,  61 ;  2  Bos.  <fc  Pul.  375 ;  5  Bar. 

is  optional,   in   a  moral   view,   to    ob-  &  Aid.  341 ;  ted  vide  13  Ves.  jun.  315, 

serve  the  positive  law,  or  to   pay  the  316. — C. 
penalty  when  detected  in  the  breach  ; 
76 


OF  THE   CONSTITUTION   OF   A   STATE.  11 

have  tasted  it,  though  obliged  to  suffer  the  majority  to~  do  as     BOOK  i. 
they  please,  are  under  no  obligation  at  all  to  submit  to  the   CHAP'  m' 
new  government :  they  may  quit  a  society  which  seems  to 
have  dissolved  itself  in  order  to  unite  again  under  another 
form:  they  have  a  right  to  retire  elsewhere,  to  sell  their 
lands,  and  take  with  them  all  their  effects. 

Here,  again,  a  very  important  question  presents  itself.     It  §  34.    Of 
essentially  belongs  to  the  society  to  make  laws  both  in  rela- t]ie  legisla- 
tion to  the  manner  in  which  it  desires  to  be  governed,  and  to  ^  ^ther 
the  conduct  of  the  citizens :  this  is  called  the  legislative  power.  jt  can 
The  nation  may  intrust  the  exercise  of  it  to  the  prince,  or  to  change  the 
an  assembly ;  or  to  that  assembly  and  the  prince  jointly ;  constitution, 
who  have  then  a  right  to  make  new  laws  and  to  repeal  old  ^    ' 
ones.  (23)     It  is  asked,  whether  their  power  extends  to  the 
fundamental  laws — whether  they  may  change  the  constitution 
of  the  state  ?     The  principles  we  have  laid  down  lead  us  to 
decide  with  certainty,  that  the  authority  of  these  legislators 
does  not  extend  so  far,  and  that  they  ought  to  consider  the 
fundamental  laws  as  sacred,  if  the  nation  has  not,  in  very 
express  terms,  given  them  power  to  change  them.     For  the 
constitution  of  the  state  ought  to  possess  stability :  and  since 
that  was  first  established  by  the  nation,  which  afterwards 
intrusted  certain  persons  with  the  legislative  power,  the  fun- 
damental laws  are  excepted  from  their  commission.     It  is 
visible  that  the  society  only  intended  to  make  provision  for 
having  the   state   constantly  furnished  with  laws  suited  to 
particular  conjunctures,  and,  for  that  purpose,  gave  the  legis- 
lature the  power  of  abrogating'  the  ancient  civil  and  political 
laws  that  were  not  fundamental,  and  of  making  new  ones ; 
but  nothing  leads  us  to  think  that  it  meant  to  submit  the  con- 
stitution itself  to  their  will.    In  short,  it  is  from  the  constitu- 
tion that  those  legislators  derive  their  power :  how  then  can 
they  change  it  without  destroying  the  foundation  of  their  own 
authority?     By  the  fundamental  laws  of  England,  the  two 
houses  of  parliament,  in  concert  with  the  king,  exercise  the 
legislative  power :  but,  if  the  two  houses  should  resolve  to 
suppress  themselves,  and  to  invest  the  king  with  full  and  ab- 
solute authority,  certainly  the  nation  would  not  suffer  it.    [  12  ] 
And  who  would  dare  to  assert  that  they  would  not  have  a 
right  to  oppose  it  ?     But  if  the  parliament  entered  into  a 
debate  on  making  so  considerable  a  change,  and  the  whole    , 

(23)  Thus,  during  the  last  war,  Eng-  being  considered  unconstitutional  dele- 
lish  acts  of  Parliament  delegated  to  gations  of  powers  of  altering  the  funda- 
tke  king  in  council  the  power  of  making  mental  laws,  part  of  the  constitution 
temporary  orders  and  laws  regulating  itself;  but  even  then,  the  rules  or 
commerce.  So  by  a  bill  of  3  Will.  4,  orders  so  made  are  not  absolutely  to 
power  was  proposed  to  be  given  to  become  law  until  they  have  been  sub- 
eight  of  the  judges  to  make  rules  and  mitted  to,  and  not  objected  against, 
orders  respecting  pleading,  these  not  in  parliament  during  six  weeks. — C. 
G2  77 


12 


OF   THE   SOVEREIGN. 


BOOK   I. 
CHAP.    III. 

g  35.  The 
nation 
ought  not 
to  attempt 
it  without 
great  cau- 
tion. 


§36.  It  is 
the  judge  of 
all  disputes 
relating  to 
the  govern- 
ment. 


§  37.    No 
foreign 
power  has 
a  right  to 
interfere. 


nation  was  voluntarily  silent  upon  it,  this  would  be  considered 
as  an  approbation  of  the  act  of  its  representatives. 

But  in  treating  here  of  the  change  of  the  constitution,  we 
treat  only  of  the  right :  the  question  of  expediency  belongs 
to  politics.  We  shall  therefore  only  observe  in  general,  that 
great  changes  in  a  state  being  delicate  and  dangerous  opera- 
tions, and  frequent  changes  being  in  their  own  nature  pre- 
judicial, a  people  ought  to  be  vqry  circumspect  in  this  point, 
and  never  be  inclined  to  make  innovations  without  the  most 
pressing  reasons,  or  an  absolute  necessity.  The  fickleness 
of  the  Athenians  was  ever  inimical  to  the  happiness  of  the 
republic,  and  at  length  proved  fatal  to  that  liberty  of  which 
they  were  so  jealous,  without  knowing  how  to  enjoy  it. 

We  may  conclude  from  what  has  been  said  (§  81),  that  if 
any  disputes  arise  in  a  state  respecting  the  fundamental 
laws,  the  public  administration,  or  the  rights  of  the  different 
powers  of  which  it  is  composed,  it  belongs  to  the  nation  alone 
to  judge  and  determine  them  conformably  to  its  political 
constitution. 

In  short,  all  these  aifairs  being  solely  a  national  concern, 
no  foreign  power  has  a  right  to  interfere  in  them,  nor  ought 
to  intermeddle  with  them  otherwise  than  by  its  good  offices, 
unless  requested  to  do  it,  or  induced  by  particular  reasons. 
If  any  intrude  into  the  domestic  concerns  of  another  nation, 
and  attempt  to  put  a  constraint  on  its  deliberations,  they  do 
it  an  injury. 


CHAP.  IV. 


CHAP,  iv.        OF  THE   SOVEREIGN,    HIS    OBLIGATIONS,   AND   HIS   RIGHTS. 

§38.  Of  the  THE  reader  cannot  expect  to  find  here  a  long  deduction 
sovereign.  Of  £he  rights  of  sovereignty,  and  the  functions  of  a  prince. 
These  are  to  be  found  in  treatises  on  the  public  law.  In  this 
chapter  we  only  propose  to  show,  in  consequence  of  the  grand 
principles  of  the  law  of  nations,  what  a  sovereign  is,  and  to 
give  a  general  idea  of  his  obligations  and  his  rights. 

We  have  said  that  the  sovereignty  is  that  public  authority 
which  commands  in  civil  society,  and  orders  and  directs  what 
each  citizen  is  to  perform,  to  obtain  the  end  of  its  institution. 
This  authority  originally  and  essentially  belonged  to  the  body 
of  the  society,  to  which  each  member  submitted,  and  ceded 
his  natural  right  of  conducting  himself  in  every  thing  as  he 
pleased,  according  to  the  dictates  of  his  own  understanding, 
and  of  doing  himself  justice.  But  the  body  of  the  society 
does  not  always  retain  in  its  own  hands  this  sovereign  au- 
thority :  it  frequently  intrusts  it  to  a  senate,  or  to  a  single 
person.  That  senate,  or  that  person,  is  then  the  sovereign. 
78 


OF   THE   SOVEREIGN.  13 


It  is  evident  that  men  form  a  political  society,  and  submit     BOOK 
to  laws,  solely  for  their  own   advantage  and  safety.      The 


TAP. 


sovereign  authority  is  then  established  only  for  the  common  ?  39-    II  is 
good  of  all  the  citizens  ;  and  it  would  be  absurd  to  think  that  f^ 
it  could  change  its  nature  on  passing  into  the  hands  of  asafetyand 
senate  or  a  monarch.      Flattery,  therefore,  cannot,  without  advantage 
rendering  itself  equally  ridiculous  and  odious,  deny  that  the  of  society- 
sovereign  is  only  established  for  the  safety  and  advantage  of 
society. 

A  good  prince,  a  wise  conductor  of  society,  ought  to  have 
his  mind  impressed  with  this  great  truth,  that  the  sovereign 
power  is  solely  intrusted  to  him  for  the  safety  of  the  state, 
and  the  happiness  of  all  the  people ;  that  he  is  not  permitted 
to  consider  himself  as  the  principal  object  in  the  administra- 
tion of  affairs,  to  seek  his  own  satisfaction,  or  his  private 
advantage ;  but  that  he  ought  to  direct  all  his  views,  all  his 
steps,  to  the  greatest  advantage  of  the  state  and  people  who 
have  submitted  to  him.*  What  a  noble  sight  it  is  to  see  a 
king  of  England  rendering  his  parliament  an  account  of  his 
principal  operations — assuring  that  body,  the  representatives 
of  the  nation,  that  he  has  no  other  end  in  view  than  the  glory 
of  the  state  and  the  happiness  of  his  people — and  affection- 
ately thanking  all  who  concur  with  him  in  such  salutary 
views !  Certainly,  a  monarch  who  makes  use  of  this  lan- 
guage, and  by  his  conduct  proves  the  sincerity  of  his  pro- 
fessions, is,  in  the  opinion  of  the  wise,  the  only  great  man. 
But,  in  most  kingdoms,  a  criminal  flattery  has  long  since 
caused  these  maxims  to  be  forgotten.  A  crowd  of  servile 
courtiers  easily  persuade  a  proud  monarch  that  the  nation 
was  made  for  him,  and  not  he  for  the  nation.  He  soon  con- 
siders the  kingdom  as  a  patrimony  that  is  his  own  property, 
and  his  people  as  a  herd  of  cattle  from  which  he  is  to  derive 
his  wealth,  and  which  he  may  dispose  of  to  answer  his  own 
views,  and  gratify  his  passions.  Hence  those  fatal  wars 
undertaken  by  ambition,  restlessness,  hatred,  and  pride ; — 
hence  those  oppressive  taxes,  whose  produce  is  dissipated  by 
ruinous  luxury,  or  squandered  upon  mistresses  and  favourites ; 
— hence,  in  fine,  are  important  posts  given  by  favour,  while 
public  merit  is  neglected,  and  every  thing  that  does  not  im- 
mediately interest  the  prince  is  abandoned  to  ministers  and 
subalterns.  Who  can,  in  'this  unhappy  government,  discover 
an  authority  established  for  the  public  welfare  ?  A  great 

*  The    last  words   of  Louis    VI.   to  fore  had  done  on  similar  occasions)  that 

bis   son    Louis   VII.    were — "Remem-  "  a  single  hour's  attention  devoted  by  a 

ber,  my  son,  that  royalty  is  but  a  public  prince   to  the  care  of  his  state,  is  of 

employment,  of  which  you  must  render  more  use  and  consequence  than  all  the 

a  rigorous   account  to  him  who  is  the  homage  and  prayers  he  could  offer  up 

sole  disposer  of  crowns  and  sceptres."  to    God   during  his   whole   life."    The 

Abb«  Velley's  Hist,  of  France,  Vol.  III.  same  sentiment  is  found  in  the  Koran. 

P-  65-  Hist  of  Timnr-Bec,  Book  II.  ch.  xlL 

Timur-Bec  declared  (as  he  often  be- 

79 


14  OF   THE   SOVEREIGN. 

BOOK  i.  prince  will  be  on  his  guard  even  against  his  virtues.  Let  us 
CHAP>  IV-  not  say,  with  some  writers,  that  private  virtues  are  not  the 
virtues  of  kings — a  maxim  of  superficial  politicians,  or  of 
[  14  ]  those  who  are  very  inaccurate  in  their  expressions.  Good- 
ness, friendship,  gratitude,  are  still  virtues  on  the  throne ; 
and  would  to  God  they  were  always  to  be  found  there !  But 
a  wise  king  does  not  yield  an  undiscerning  obedience  to  their 
impulse.  He  cherishes  them,  ke  cultivates  them  in  his  private 
life ;  but  in  state  affairs  he  listens  only  to  justice  and  sound 
policy.  And  why?  because  he  knows  that  the  government 
was  intrusted  to  him  only  for  the  happiness  of  society,  and 
that,  therefore,  he  ought  not  to  consult  his  own  pleasure  in 
the  use  he  makes  of  his  power.  He  tempers  his  goodness 
with  wisdom;  he  gives  to  friendship  his  domestic  and  private 
favours ;  he  distributes  posts  and  employments  according  to 
merit ;  public  rewards  to  services  done  to  the  state.  In  a 
word,  he  uses  the  public  power  only  with  a  view  to  the  public 
welfare.  All  this  is  comprehended  in  that  fine  saying  of 
Lewis  XII. : — "  A  king  of  France  does  not  revenge  the  in- 
juries of  a  duke  of  Orleans." 

g  40.  Of  his     A  political  society  is  a  moral  person  (Prelim.  §  2)  inasmuch 
representa-  ag  it  has  an  understanding  and  a  will,  of  which  it  makes  use 
tive  charac-  for  ^  con(juct;  Of  fa  affairs,  and  is  capable  of  obligations 
and  rights.     When,  therefore,  a  people  confer  the  sovereignty 
on  any  one  person,  they  invest  him  with  their  understanding 
and  will,  and  make  over  to  him  their  obligations  and  rights, 
so  far  as  relates  to  the  administration  of  the  state,  and  to  the 
exercise  of  the  public  authority.     The  sovereign,  or  conductor 
of  the  state,  thus  becoming  the  depositary  of  the  obligations 
and  rights  relative  to  government,  in  him  is  found  the  moral 
person,  who,  without  absolutely  ceasing  to  exist  in  the  nation, 
acts  thenceforwards  only  in  him  and  by  him.     Such  is  the 
origin  of  the  representative  character  attributed  to  the  sove- 
reign.    He  represents  the  nation  in  all  the  affairs  in  which 
he  may  happen  to  be  engaged  as  a  sovereign.     It  does  not 
debase  the  dignity  of  the  greatest  monarch  to  attribute  to 
him  this  representative  character ;  on  the  contrary,  nothing 
sheds  a  greater  lustre  on  it,  since  the  monarch  thus  unites  in 
ntmste?  '*  *"s  own  Person  a^  tne  majesty  that  belongs  to  the  entire  body 
witiTthe  ob- of  the  nation. 

ligations  of  The  sovereign,  thus  clothed  with  the  public  authority,  with 
the  nation,  every  thing  that  constitutes  the  moral  personality  of  the 
^tdhi^ested  nation,  of  course  becomes  bound  by  the  obligations  of  that 
rights  nation,  and  invested  with  its  rights. 

|  42.  His  All  that  has  been  said  in  Chap.  II.  of  the  general  duties 
duty  with  of  a  nation  towards  itself  particularly  regards  the  sovereign, 
respect  jje  js  ^he  depositary  of  the  empire,  and  of  the  power  of  com- 
vatioTami  manding  whatever  conduces  .to  the  public  welfare;  he  ought, 
perfection  of  therefore,  as  a  tender  and  wise  father,  and  as  a  faithful  ad- 
the  nation,  ministrator,  to  watch  for  the  nation,  and  take  care  to  preserve 

80 


OF   THE   SOVEREIGN.  14 

it,  and  render  it  more  perfect ;  to  better  its  state,  and  to     BOOK  i. 
secure  it,  as  far  as  possible,  against  every  thing  that  threatens    CHAP-  IY- . 
its  safety  or  its  happiness. 

Hence  all  the  rights  which  a  nation  derives  from  its  obli-  g  43.   His 
gation  to  preserve  and  perfect  itself,  and  to  improve  its  state,  rights  in  this 
(see  §§  18,  20,  and  23,  of  this  book) ;  all  these  rights,  I  say,  resPect- 
reside  in  the  sovereign,  who  is  therefore  indifferently  called   [  15  ] 
the  conductor  of  the  society,  superior,  prince,  &c. 

We  have  observed  above,  that  every  nation  ought  to  know  $  44.  He 
itself.     This  obligation  devolves  on  the  sovereign,  since  it  is  ought  to 
he  who  is  to  watch  over  the  preservation  and  perfection  of  kD  w  the 
the  nation.     The  duty  which  the  law  of  nature  here  imposes 
on  the  conductors  of  nations  is  of  extreme  importance,  and 
of  considerable  extent.     They  ought  exactly  to  know  the 
whole  country  subject  to  their  authority;  its  qualities,  de- 
fects,  advantages,   and  situation  with  regard  to  the  neigh- 
bouring states ;  and  they  ought  to  acquire  a  perfect  know- 
ledge of  the  manners  and  general  inclinations  of  their  people, 
their  virtues,  vices,  talents,  &c.    All  these  branches  of  know- 
ledge are  necessary  to  enable  them  to  govern  properly. 

The  prince  derives  his  authority  from  the  nation ;  he  pos-  g  45.   The 
sesses  just  so  much  of  it  as  they  have  thought  proper  to  intrust  extent  of  his 
him  with.*     If  the  nation  has  plainly  and  simply  invested powen 
him  with  the  sovereignty,  without  limitation  or  division,  he  is 
supposed  to  be  invested  with  all  the  prerogatives,  without  Preroga- 
which  the  sovereign  command  or  authority  could  not  be  ex- tives  of  ma- 
erted  in  the  manner  most  conducive  to  the  public  welfare. Jesty< 
These  are  called  regal  prerogatives,  or  the  prerogatives  of 


But  when  the  sovereign  power  is  limited  and  regulated  by  g  45.   The 
the  fundamental  laws  of  the  state,  those  laws  show  the  prince  prince 
the  extent  and  bounds  of  his  power,  and  the  manner  in  which  ousht  to 
he  is  to  exert  it.     The  prince  is  therefore  strictly  obliged  not 
only  to  respect,  but  also  to  support  them.     The  constitution  funda- 
and  the  fundamental  laws  -are  the  plan  on  which  the  nation  mental 
has  resolved  to  labour  for  the  attainment  of  happiness ;  the laws< 
execution  is  intrusted  to  the  prince.     Let  him  religiously 
follow  this  plan ;  let  him  consider  the  fundamental  laws  as 
inviolable  and  sacred  rules  ;  and  remember  that  the  moment 
he  deviates  from  them,  his  commands  become  unjust,  and  are 
but  a  criminal  abuse  of  the  power  with  which  he  is  intrusted. 
He  is,  by  virtue  of  that  power,  the  guardian  and  defender  of      ' 


*  Neque  enim  se  princeps  reipublicaa  the    sovereign.      Quod   caput    est,    sit 

et   singulorum    dominum    arbitrabitur,  principi    persuasum,   totius    reipublicae 

quamvis    assentatoribus    id   in   aurem  majorem  quam  ipsius  unius  auctorita- 

insusurrantibus,  sed  rectorem  mercede  tern  esse :    neque   pessimis    hominibus 

a  civibus  designata,  quam  augere,  nisi  credat    diversum   affirmantibus   gratifi- 

ipsis     volentibus,     nefas     existimabit.  candi  studio ;  quce  magna  pernicies  est 

Ibid.  c.  v.— From  this  principle  it  fol-  Ibid, 
lows   that  the    nation    is  superior    to 

11  81 


15  OP   THE    SOVEREIGN. 

BOOK  T.     the  laws :  and  while  it  is  his  duty  to  restrain  each  daring 
CHAP,  iv.   Yj0iator  Of  them,  ought  he  himself  to  trample  them  under 

foot?* 

1 47.  He  If  the  prince  be  invested  with  the  legislative  power,  he  may, 
may  change  accor(Jing  to  his  wisdom,  and  when  the  public  advantage  re- 
fnndamen-0  quires  it,  abolish  those  laws  that  are  not  fundamental,  and 
taL  make  new  ones.  (See  what  we  have  said  on  this  subject,  in 

the  preceding  chapter,  §  34.) 

§  48.  He  But  while  these  laws  exist,  the  sovereign  ought  religiously 
ought  to  to  maintain  and  observe  them.  They  are  the  foundation  of 
wTd'observe  ^e  public  tranquillity,  and  the  firmest  support  of  the  sove- 
the  existing  reign  authority.  Every  thing  is  uncertain,  violent,  and  subject 
laws.  to  revolutions,  in  those  unhappy  states  where  arbitrary  power 

has  placed  her  throne.  It  is  therefore  the  true  interest  of  the 
prince,  as  well  as  his  duty,  to  maintain  and  respect  the  laws ; 
he  ought  to  submit  to  them  himself.  We  find  this  truth  esta- 
blished in  a  piece  published  by  order  of  Lewis  XIV.,  one  of 
the  most  absolute  princes  that  ever  reigned  in  Europe.  "Let 
it  not  be  said  that  the  sovereign  is  not  subject  to  the  laws  of 
his  state,  since  the  contrary  proposition  is  one  of  the  truths 
of  the  law  of  nations,  which  flattery  has  sometimes  attacked, 
and  which  good  princes  have  always  defended,  as  a  tutelar 
divinity  of  their  states,  "f 
g  49.  in  But  it  is  necessary  to  explain  this  submission  of  the  prince 

he^ubit to  the  laWS*  First'  he  ought'  as  we  nave  Just  seen>  to  follow 
to  the8  laws'  their  regulations  in  all  the  acts  of  his  administration.  In  the 
second  place,  he  is  himself  subject,  in  his  private  affairs,  to 
all  the  laws  that  relate  to  property.  I  say,  "in  his  private 
affairs;"  for  when  he  acts  as  a  sovereign  prince,  and  in  the 
name  of  the  state,  he  is  subject  only  to  the  fundamental  laws, 
and  the  law  of  nations.  In  the  third  place,  the  prince  is  sub- 
ject to  certain  regulations  of  general  polity,  considered  by  the 
state  as  inviolable,  unless  he  be  excepted  in  express  terms  by 
the  law,  or  tacitly  by  a  necessary  consequence  of  his  dignity. 

*  In  some  countries,  formal  pre-  past  generations,  who  formerly  made 
cautions  are  taken  against  the  abuse  effectual  use  of  arms  and  decrees  to 
of  power. — "Reflecting  among  other  reduce  within  proper  bounds  such  of 
things  (says  Grotius),  that  princes  are  their  sovereigns  as  had  transgressed 
often  found  to  make  no  scruple  of  vio-  the  line  of  duty,  whether  through  their 
lating  their  promises  under  the  stale  own  licentiousness  or  the  artifices  of 
pretext  of  the  public  good,  the  people  their  flatterers.  Thus  it  happened  to 
of  Brabant,  in  order  to  obviate  that  John  the  Second ;  nor  would  they  con- 
inconvenience,  established  the  custom  sent  to  make  peace  with  him  or  his 
of  never  admitting  their  prince  to  the  successors,  until  those  princes  had  en- 
possession  of  the  government  without  tered  into  a  solemn  engagement  to 
having  previously  made  with  him  a  secure  the  citizens  in  the  enjoyment 
covenant,  that,  whenever  ho  may  hap-  of  their  privileges."  Annals  of  the 
pen  to  violate  the  laws  of  the  country,  Netherlands,  Book  II.  note,  edit.  A.  D. 
they  shall  be  absolved  from  the  oath  1797. 

of  obedience  they  had    sworn  to  him,        f  A  treatise  on  the  right  of  the  queen 

until    ample    reparation    be   made  for  to  several  states  of  the  Spanish  mon- 

the    outrages    committed.      The    truth  archy,  1667,  in  12mo,  Part  II.  p.  191. 
of  this  is  confirmed  by  the  example  of 


OF   THE   SOVEREIGN. 


16 


I  here  speak  of  the  laws  that  relate  to  the  situation  of  indi-  BOOK  i. 
viduals,  and  particularly  of  those  that  regulate  the  validity  CHAP'  **' 
of  marriages.  These  laws  are  established  to  ascertain  the 
state  of  families :  now  the  royal  family  is  that  of  all  others 
the  most  important  to  be  certainly  known.  But,  fourthly,  we 
shall  observe  in  general,  with  respect  to  this  question,  that, 
if  the  prince  is  invested  with  a,  full,  absolute,  and  unlimited 
sovereignty,  he  is  above  the  laws,  which  derive  from  him  all 
their  force ;  and  he  may  dispense  with  his  own  observance  of  [  17  ] 
them,  whenever  natural  justice  and  equity  will  permit  him. 
Fifthly,  as  to  the  laws  relative  to  morals  and  good  order,  the 
prince  ought  doubtless  to  respect  them,  and  to  support  them 
by  his  example.  But,  sixthly,  he  is  certainly  above  all  civil 
penal  laws.  The  majesty  of  a  sovereign  will  not  admit  of  his 
being  punished  like  a  private  person ;  and  his  functions  are 
too  exalted  to  allow  of  his  being  molested  under  pretence  of 
a  fault  that  does  not  directly  concern  the  government  of  the, 
state. 

It  is  not  sufficient  that  the  prince  be  above  the  penal  laws :  ?  50.  His 
even  the  interest  of  nations  requires  that  we  should  go  some-  Per^on  "  fa- 
thing  farther.  The  sovereign  is  the  soul  of  the  society ;  if  Ti 
he  be  not  held  in  veneration  by  the  people,  and  in  perfect 
security,  the  public  peace,  and  the  happiness  and  safety  of  the 
state,  are  in  continual  danger.  The  safety  of  the  nation  then 
necessarily  requires  that  the  person  of  the  prince  be  sacred 
and  inviolable.  The  Roman  people  bestowed  this  privilege 
on  their  tribunes,  in  order  that  they  might  meet  with  no  ob- 
struction in  defending  them,  and  that  no  apprehension  might 
disturb  them  in  the  discharge  of  their  office.  The  cares,  the 
employments  of  a  sovereign,  are  of  much  greater  importance 
than  those  of  the  tribunes  were,  and  not  less  dangerous,  if  he 
be  not  provided  with  a  powerful  defence.  It  is  impossible 
even  for  the  most  just  and  wise  monarch  not  to  make  mal- 
contents ;  and  ought  the  state  to  continue  exposed  to  the  dan- 
ger of  losing  so  valuable  a  prince  by  the  hand  of  an  assassin  ? 
The  monstrous  and  absurd  doctrine,  that  a  private  person  is 
permitted  to  kill  a  bad  prince,  deprived  the  French,  in  the 
beginning  of  the  last  century,  of  a  hero  who  was  truly  the 
father  of  his  people.*  Whatever  a  prince  may  be,  it  is  an 
enormous  crime  against  a  nation  to  deprive  them  of  a  sove- 
reign whom  they  think  proper  to  obey.f 

*  Since  the  above  was  written,  France  made  by  Damien    to   assassinate   Louis 

has  witnessed  a  renewal  of  those  hor-  J5TF.]     Note,  edit.  A.D.  1797. 
rors.     She  sighs  at  the  idea  of  having        f  In  Mariana's  work,  above  quoted, 

given  birth   to  a  monster  capable   of  I  find  (chap.  vii.  towards    the  end)  a 

violating  the  majesty  of  kings   in  the  remarkable  instance  of  the  errors  into 

person  of  a  prince,  whom  the  qualities  which  we  are  apt  to  be  led  by  a  subtle 

of  his  heart  entitle  to  the  love  of  his  sophistry  destitute  of  sound  principles, 

subjects  and  the  veneration  of  foreign-  That    author    allows    us   to   poison    a 

ers.     [The  author  alludes  to  the  attempt  tyrant,  and  even  a  public  enemy,  pro- 

83 


17  OF   THE   SOVEREIGN. 

BOOK  i.        But  this  high  attribute  of  sovereignty  is  no  reason  why  the 
CHAP,  iv.  natjpn  should   not  curb  an  insupportable  tyrant,  pronounce 
§  51.   But   sentence  on  him  (still  respecting  in  his  person  the  majesty  of 
ma  "curT    ^s  ran^)  an<^  withdraw  itself  from  his  obedience.     To  this 
a  tyrant,      indisputable  right  a  powerful  republic  owes  its  birth.     The 
and  with-    tyranny  exercised  by  Philip  II.  in  the  Netherlands  excited 
draw  itself   those  provinces  to  rise  :  seven  of  them,  closely  confederated, 
obedience     bravely  maintained  their  liberties,  under  the  conduct  of  the 
heroes  of  the  House  of  Orange  ;  and  Spain,  after  several  vain 
[  18  ]   and  ruinous  efforts,  acknowledged  them  sovereign  and  inde- 
pendent states.     If  the  authority  of  the  prince  is  limited  and 
regulated  by  the  fundamental  laws,  the  prince,  on  exceeding 
the  bounds  prescribed  him,  commands  without  any  right  and 
even  without  a  just  title :  the  nation  is  not  obliged  to  obey 
him,  but  may  resist  his  unjust  attempts.     As  soon  as  a  prince 
attacks  the  constitution  of  the  state,  he  breaks  the  contract 
which  bound  the  people  to  him ;  the  people  become  free  by 
the  act  of  the  sovereign,  and  can  no  longer  view  him  but 
as  a  usurper  who  would  load  them  with  oppression.     This 
truth  is  acknowledged  by  every  sensible  writer,  whose  pen  is 
not  enslaved  by  fear,  or  sold  for  hire.     But  some  celebrated 
authors  maintain,  that  if  the   prince  is  invested  with  the 
supreme  command  in  a  full  and  absolute  manner,  nobody  has 
a  right  to  resist  him,  much  less  to  curb  him,  and  that  naught 
remains  for  the  nation  but  to  suffer  and  obey  with  patience. 
This  is  founded  upon  the  supposition  that  such  a  sovereign  is 
not  accountable  to  any  person  for  the  manner  in  which  he 
governs,  and  that  if  the  nation  might  control  his  actions  and 
resist  him  where  it  thinks  them  unjust,  his  authority  would 
no   longer   be   absolute ;  which  would   be   contrary  to   this 
hypothesis.     They  say  that  an  absolute  sovereign  completely 
possesses  all  the  political  authority  of  the  society,  which  no- 
body can  oppose ;  that,  if  he  abuses  it,  he  does  ill  indeed,  and 
wounds  his  conscience ;  but  that  his  commands  are  not  the 
less  obligatory,  as  being  founded  on  a  lawful  right  to  com- 
mand ;  that  the  nation,  by  giving  him  absoulte  authority,  has 
reserved  no  share  of  it  to  itself,  and  has  submitted  to  his 
discretion,  &c.     We  might  be  content  with  answering,  that 

vided  it  bo  done  without  obliging  him,  person  who  administered  the  poison. — 

either  by  force  or  through   mistake  or  Ne  cogatur  tantum   sciens  aut  impru- 

ignorance,  to    concur  in  the    act   that  dens  sibi   conscire  mortem;  quod  esse 

causes  his  own  death, — which  would  be  nefas  judicamus,  veneno  in    potu   aut 

the  case,  for  instance,  in  presenting  him  cibo,  quod  hauriat  qui  perimendus  ost, 

a  poisoned  draught.     For  (says  he),  in  aut  simili   alia    retemperato.      A   fine 

thus  leading  him  to  an  act  of  suicide,  reason,  truly !    Was  Mariana  disposed 

although  committed  through  ignorance,  to  insult  the  understandings  of  his  read- 

we  make  him  violate  the   natural  law  ers,  or    only  desirous    of  throwing  a 

which  forbids   each  individual  to  take  slight  varnish  over  the  detestable  doc- 

away  his  own  life ;   and  the  crime  of  trine  contained  in  that  chapter  ?— Note, 

him  who  thus  unknowingly  poisons  him-  edit.  A.  D.  1797. 
self  redounds  on  the  real  author, — the 
84 


OF  THE   SOVEREIGN.  18 

in  this  light  there  is  not  any  sovereign  who  is  completely  and  BOOK  i. 
fully  absolute.  But  in  order  to  remove  all  these  vain  subtle-  CHAF'  "*• 
ties,  let  us  remember  the  essential  end  of  civil  society.  Is  it 
not  to  labour  in  concert  for  the  common  happiness  of  all  ? 
Was  it  not  with  this  view  that  every  citizen  divested  himself 
of  his  rights,  and  resigned  his  liberty  ?  Could  the  society 
make  such  use  of  its  authority  as  irrevocably  to  surrender 
itself  and  all  its  members  to  the  discretion  of  a  cruel  tyrant  ? 
No,  certainly,  since  it  would  no  longer  possess  any  right 
itself,  if  it  were  disposed  to  oppress  a  part  of  the  citizens. 
When,  therefore,  it  confers  the  supreme  and  absolute  govern- 
ment, without  an  express  reserve,  it  is  necessarily  with  the 
tacit  reserve  that  the  sovereign  shall  use  it  for  the  safety  of 
the  people,  and  not  for  their  ruin.  If  he  becomes  the  scourge 
of  the  state,  he  degrades  himself;  he  is  no  better  than  a 
public  enemy,  against  whom  the  nation  may  and  ought  to 
defend  itself ;  and  if  he  has  carried  his  tyranny  to  the  utmost 
height,  why  should  even  the  life  of  so  cruel  and  perfidious  an 
enemy  be  spared  ?  Who  shall  presume  to  blame  the  conduct 
of  the  Roman  senate,  that  declared  Nero  an  enemy  to  his 
country  ? 

But  it  is  of  the  utmost  importance  to  observe,  that  this  [  19  ] 
judgment  can  only  be  passed  by  the  nation,  or  by  a  body 
which  represents  it,  and  that  the  nation  itself  cannot  make 
any  attempt  on  the  person  of  the  sovereign,  except  in  cases 
of  extreme  necessity,  and  when  the  prince,  by  violating  the 
laws,  and  threatening  the  safety  of  his  people,  puts  himself 
in  a  state  of  war  against  them.  It  is  the  person  of  the  sove- 
reign, not  that  of  an  unnatural  tyrant  and  a  public  enemy, 
that  the  interest  of  the  nation  declares  sacred  and  inviolable. 
We  seldom  see  such  monsters  as  Nero.  In  the  more  common 
cases,  when  a  prince  violates  the  fundamental  laws ;  when  he 
attacks  the  liberties  and  privileges  of  his  subjects ;  or  (if  he 
be  absolute)  when  his  government,  without  being  carried  to 
extreme  violence,  manifestly  tends  to  the  ruin  of  the  nation ; 
it  may  resist  him,  pass  sentence  on  him,  and  withdraw  from 
his  obedience ;  but  though  this  may  be  done,  still  his  person 
should  be  spared,  and  that  for  the  welfare  of  the  state.*  It 

*  Dissimulandum    censeo     quatenus  Henrico   hujus    abnepote   ob  ignaviam 

salus     publica     patiatur,    privatimque  pravosque    mores    abdicate    procerum 

corruptis  moribus   princeps   contingat;  suffrages,  primum  Alfonsus  ejus  frater, 

alioquin   si  rempublicam  in  periculum  recte  an  secus  non  dispute,  sed  tamen      ' 

vocat,  si  patrise   religionis   contemptor  in  tenera  setate   rex    est    proclamatus : 

existit,    neque    medicinam    ullam    re-  deinde    defuncto     Alfonso,    Elisabeths 

cipit,   abdicandum  judico,  alium    sub-  ejus  soror,  Henrico  invito,  renim  sum- 

stituendum  ;    quod    in    Hispania    non  mam  ad  se  traxit,  regio  tantum  nomine 

semel  fuisse  factum  scimus :  quasi  fera  abstinens  dum  ille  vixit.    Mariana,  de 

irritata,  omnium  telis  peti  debet,  cum,  Rege  et  Regis  Institut.  Lib.  I.  c.  iii. 

humanitate  abdicata,  tyrannum  induit.  To  this  authority,  furnished  by  Spain, 

Sic  Petro  rege  ob  immanitatem  dejecto  join  that  of   Scotland,  proved  by-  the 

publice,  Henrieus  ejus  frater,  quamvis  letter  of  the  barons  to  the  pope,  dated 

ex  impari  matxe,  regnum  obtinuit    Sic  April  6,  1320,  requesting  him  to  pre- 

H  85 


20 


OF   THE    SOVEREIGN. 


BOOK  i.  is  above  a  century  since  the  English  took  up  arms  against 
CHAP.  IY.  their  king,  and  obliged  him  to  descend  from  the  thr»  ne.  A 
set  of  able,  enterprising  men,  spurred  on  by  ambition,  took 
advantage  of  the  terrible  ferment  caused  by  fanaticism  and 
party  spirit ;  and  Great  Britain  suffered  her  sovereign  to  die 
unworthily  on  a  scaffold.  The  nation  coming  to  itself  dis- 
covered its  former  blindness.  If,  to  this  day,  it  still  annually 
makes  a  solemn  atonement,  it  is  not  only,  from  the  opinion 
that  the  unfortunate  Charles  I.  did  not  deserve  so  cruel  a 
fate,  but,  doubtless,  from  a  conviction  that  the  very  safety 
of  the  state  requires  the  person  of  the  sovereign  to  be  held 
sacred  and  inviolable,  and  that  the  whole  nation  ought  to 
render  this  maxim  venerable,  by  paying  respect  to  it  when 
the  care  of  its  own  preservation  will  permit. 

One  word  more  on  the  distinction  that  is  endeavoured  to 
be  made  here  in  favour  of  an  absolute  sovereign.  Whoever 
has  well  weighed  the  force  of  the  indisputable  principles  we 
have  established,  will  be  convinced,  that  when  it  is  necessary 
to  resist  a  prince  who  has  become  a  tyrant,  the  right  of  the 
people  is  still  the  same,  whether  that  prince  was  made  abso- 
lute by  the  laws,  or  was  not ;  because  that  right  is  derived 


Tail  on  the  king  of  England  to  desist 
from  his  enterprises  against  Scotland. 
After  having  spoken  of  the  evils  they 
had  suffered  from  him,  they  add — A 
quibus  malis  innumeris,  ipso  juvante 
qui  post  vulnera  medetur  et  sanat, 
liberati  sumus  per  serenissimum  prin- 
cipem  regem  et  dominum  nostrum, 
dominum  Robertum,  qui  pro  populo  et 
hasreditate  suis  do  manibus  inimicorum 
liberandis,  quasi  alter  Maccabaeus  aut 
Josue,  labores  et  taedia,  inedias  et  pe- 
ricula,  laeto  sustinuit  animo.  Quern 
etiam  divina  dispositio,  et  ( juxta  leges 
et  consuetudines  nostras,  quas  usque 
ad  mortem  sustinere  volumus)  juris 
successio,  et  debitus  nostrorum  con- 
sensus et  assensus  nostrum  fecerunt 
principem  atque  regem:  cui,  tanquam 
illi  per  quern  sains  in  populo  facta  est, 
pro  nostra  libertate  tuenda,  tarn  jure 
qnam  meritis  tenemur,  et  volumus  in 
omnibus  adhaerere.  Quern,  si  ab  in- 
ceptis  desistet,  regi  Anglorum  aut 
Anglis  nos  aut  regnum  nostrum  volons 
subjicere,  tanquam  inimicum  nostrum 
et  sui  nostrique  juris  subversorem, 
statim  espellere  nitemur,  et  alium 
regem  nostrum,  qui  ad  defensionem 
nostram  sufficiet,  faciemus:  quia, 
quamdiu  centum  viri  remanserint,  nun- 
quam  Anglorum  dominio  aliquatenus 
volumus  subjugari.  Non  enim  propter 
gloriam,  divitias,  ant  honores  pugna- 
mus,  sed  propter  libertateni  solummodo, 
86 


quam  nemo,  bonus  nisi  simul  cum  vita 
amittit. 

"In  the  year  1581"  (says  Grotius, 
Ann.  Book  III.)  "the  confederated 
provinces  of  the  Netherlands — after 
having  for  nine  years  continued  to 
wage  war  against  Philip  the  Second, 
without  ceasing  to  acknowledge  him 
as  their  sovereign — at  length  solemnly 
deprived  him  of  the  authority  he  had 
possessed  over  their  country,  because 
he  bad  violated  their  laws  and  privi- 
leges." The  author  afterwards  ob- 
serves, that  "  France,  Spain  herself, 
England,  Sweden,  Denmark,  furnish 
instances  of  kings  deposed  by  their 
people;  so  that  there  are  at  present 
few  sovereigns  in  Europe  whose  right 
to  the  crown  rests  on  any  other  founda- 
tion than  the  right  which  the  people 
possess  of  divesting  their  sovereign  of 
his  power  when  he  makes  an  ill  use 
of  it."  Pursuant  to  this  idea,  the 
United  Provinces,  in  their  justificatory 
letters  on  that  subject,  addressed  to 
the  princes  of  the  empire  and  the  king 
of  Denmark — after  having  enumerated 
the  oppressive  acts  of  the  king  of  Spain, 
added — "Then,  by  a  mode  which  has 
been  often  enough  adopted  even  by 
those  nations  that  now  live  under 
kingly  government,  we  wrested  the 
sovereignty  from  him  whose  actions 
were  all  contrary  to  the  duty  of  a 
prince."  Ibid. — Note,  edit  A.  D.  1797. 


OF   THE   SOVEREIGN.  20 

from  what  is  the  object  of  all  political  society — the  safety  of  BOOK  i. 
the  nation,  which  is  the  supreme  laAV.*  But,  if  the  distinc-  °"AP'  IY'. 
tion  of  which  we  are  treating  is  of  no  moment  with  respect  to 
the  right,  it  can  he  of  none  in  practice,  with  respect  to  expe- 
diency. As  it  is  very  difficult  to  oppose  an  absolute  prince, 
and  it  cannot  be  done  without  raising  great  disturbances  in 
the  state,  and  the  most  violent  and  dangerous  commotions,  it 
ought  to  be  attempted  only  in  cases  of  extremity,  when  the 
public  miseries  are  raised  to  such  a  height  that  the  people  may 
say  with  Tacitus,  miseram  pacem  vel  bello  bene  mutari,  that 
it  is  better  to  expose  themselves  to  a  civil  war  than  to  endure 
them.  But  if  the  prince's  authority  is  limited,  if  it  in  some 
respects  depends  on  a  senate,  or  a  parliament  that  represents 
the  nation,  there  are  means  of  resisting  and  curbing  him, 
without  exposing  the  state  to  violent  shocks.  When  mild  and 
innocent  remedies  can  be  applied  to  the  evil,  there  can  be  no 
reason  for  Avaiting  until  it  becomes  extreme. 

But  however  limited  a  prince's  authority  may  be,  he  is  §  52.    Arbu 
conimonly  very  jealous  of  it;  it  seldom  happens  that  he  pa- tration be- 
tiently  suffers  resistance,  and  peaceably  submits  to  the  judg-  tTeen  the 
ment  of  his  people.     Can  he  want  support,  while  he  is  the  ^^,,,.,8. 
distributor  of  favours  ?     We  see  too  many  base  and  ambitious    [  2l  ] 
souls,  for  whom  the  state  of  a  rich  and  decorated  slave  has 
more  charms  than  that  of  a  modest  and  virtuous  citizen.     It 
is  therefore  always  difficult  for  a  nation  to  resist  a  prince  and 
pronounce  sentence  on  his  conduct,  without  exposing  the  state 
to  dangerous  troubles,  and  to  shocks  capable  of  overturning 
it.     This  has  sometimes  occasioned  a  compromise  between  the 
prince  and  the  subjects,  to  submit  to  the  decision  of  a  friendly 
power  all  the  disputes  that  might  arise  between  them.     Thus 
the  kings  of  Denmark,  by  solemn  treaties,  formerly  referred 
to  those  of  Sweden  the  differences  that  might  arise  between 
them  and  their  senate ;  and  this  the  kings  of  Sweden  have 
also  done  with  regard  to  those  of  Denmark.     The  princes  and 
states  of  West  Friesland,  and  the  burgesses  of  Embden,  have 
in  the  same  manner  constituted  the  republic  of  the  United 
Provinces  the  judge  of  their  differences.    The  princes  and  the 
city  of  Neufchatel  established,  in  1406,  the  canton  of  Berne 
perpetual  judge  and  arbitrator  of  their  disputes.     Thus  also, 
according  to  the  spirit  of  the  Helvetic  confederacy,  the  entire 
body  takes  cognisance  of  the  disturbances  that  arise  in  any 

*  Populi  patroni  non  pauciora  neque        Est  tamen   salutaris  cogitatio,  nt  sit 

minora  praesidia  habent.     Certe  a  repub-  principibus  persuasum,  si  rempublicam 

lica,  unde  ortum  habct  regia  pofcestas,  oppresserint,  si  vitiis  et  foeditate  intole- 

rebus  exigentibus,  regens  in  jus  vocari  randi  erunt,  ea  se  conditione  vivere,  ut 

potest,  et,  si  sanitatem  respuat,  princi-  non   jure   tantum,   sed    cum   laude    et 

patu  spoliari  j  neque  ita  in  principem  gloria,  perimi  possint  Ibid.— Note,  edit, 

jura  potestatis   transtulit,  ut  non   sibi  A.  D.  1797. 
majorem  reservarit  potestatem.     Ibid, 
cap.  vi.  87 


21  OP  THE   SOVEREIGN. 

BOOK  i.  of  the  confederated  states,  though  each  of  them  is  truly  sove- 

CHAP.  iv.  rejgn  an(j  independent. 

g  53.   The  As  soon  as  a  nation  acknowledges  a  prince  for  its  lawful 

obedience  sovereign,  all  the  citizens  owe  him  a  faithful  ohedience.     He 

which  sub-  neither  govern  the  state,  nor  perform  what  the  nation  ex- 

jects  owe  to  i  •         •/>   «        i  HI  -i        n    i  • 

a  sovereign,  pects  from  him,  if  he  be  not  punctually  obeyed,  {subjects 
then  have  no  right,  in  doubtful  cases,  to  examine  the  wisdom 
or  justice  of  their  sovereign's  ^commands ;  this  examination 
belongs  to  the  prince :  his  subjects  ought  to  suppose  (if  there 
be  a  possibility  of  supposing  it)  that  all  his  orders  are  just  and 
salutary :  he  alone  is  accountable  for  the  evil  that  may  result 
from  them. 

I  54.  In  Nevertheless  this  ought  not  to  be  entirely  a  blind  obedi- 
what  cases  ence.  No  engagement  can  oblige,  or  even  authorize,  a  man 
tbC^tTy  *°  vi°la*e  *ne  law  °f  nature.  All  authors  who  have  any  re- 
gard to  conscience  or  decency  agree  that  no  one  ought  to 
obey  such  commands  as  are  evidently  contrary  to  that  sacred 
law.  Those  governors  of  places  who  bravely  refused  to  exe- 
cute the  barbarous  orders  of  Charles  IX.  on  the  memorable 
day  of  St.  Bartholomew,  have  been  universally  praised ;  and 
the  court  did  not  dare  to  punish  them,  at  least  openly. 
"Sire,"  said  the  brave  Orte,  governor  of  Bayonne,  in  his 
letter,  "I  have  communicated  your  majesty's  command  to 
your  faithful  inhabitants  and  warriors  in  the  garrison ;  and  I 
have  found  there  only  good  citizens  and  brave  soldiers,  but 
not  a  single  executioner :  wherefore  both  they  and  I  most 
humbly  entreat  your  majesty  to  be  pleased  to  employ  our 
hands  and  our  lives  in  things  that  are  possible,  however 
hazardous  they  may  be ;  and  we  will  exert  ourselves  to  the 
last  drop  of  our  blood  in  the  execution  of  them."*  The  Count 
[  22  ]  de  Tende,  Charny,  and  others,  replied  to  those  who  brought 
them  the  orders  of  the  court,  "  that  they  had  too  great  a  re- 
spect for  the  king,  to  believe  that  such  barbarous  orders  came 
from  him." 

It  is  more  difficult  to  determine  in  what  cases  a  subject  may 
not  only  refuse  to  obey,  but  even  resist  a  sovereign,  and  op- 
pose his  violence  by  force.  When  a  sovereign  does  injury  to 
any  one,  he  acts  without  any  real  authority ;  but  we  ought 
not  thence  to  conclude  hastily  that  the  subject  may  resist 
him.  The  nature  of  sovereignty,  and  the  welfare  of  the  state, 
will  not  permit  citizens  to  oppose  a  prince  whenever  his  com- 
mands appear  to  them  unjust  or  prejudicial.  This  would  be 
falling  back  into  the  state  of  nature,  and  rendering  govern- 
ment impossible.  A  subject  ought  patiently  to  suffer  from 
the  prince  doubtful  wrongs,  and  wrongs  that  are  supportable ; 
the  former,  because  whoever  has  submitted  to  the  decision  of 
a  judge,  is  no  longer  capable  of  deciding  his  own  pretensions ; 
and  as  to  those  that  are  supportable,  they  ought  to  be  sacri- 

*  Mezeray's  History  of  France,  vol.  ii.  p.  1107. 


OF  THE   SOVEREIGN.  22 

ficed  to  the  peace  and  safety  of  the  state,  on  account  of  the  BOOK  *• 
great  advantages  obtained  by  living  in  society.  It  is  pre-  CHAF'  IV'- 
sumed,  as  matter  of  course,  that  every  citizen  has  tacitly  en- 
gaged to  observe  this  moderation ;  because,  without  it,  society 
could  not  exist.  But  when  the  injuries  are  manifest  and 
atrocious, — when  a  prince,  without  any  apparent  reason, 
attempts  to  deprive  us  of  life,  or  of  those  things  the  loss  of 
which  would  render  life  irksome,  who  can  dispute  our  right  to 
resist  him  ?  Self-preservation  is  not  only  a  natural  right, 
but  an  obligation  imposed  by  nature,  and  no  man  can  entirely 
and  absolutely  renounce  it.  And  though  he  might  give  it  up, 
can  he  be  considered  as  having  done  it  by  his  political  en- 
gagements, since  he  entered  into  society  only  to  establish  his 
own  safety  upon  a  more  solid  basis  ?  The  welfare  of  society 
does  not  require  such  a  sacrifice ;  and,  as  Barbeyrac  well 
observes  in  his  notes  on  Grotius,  "If  the  public  interest  re- 
quires that  those  who  obey  should  suffer  some  inconvenience, 
it  is  no  less  for  the  public  interest  that  those  who  command 
should  be  afraid  of  driving  their  patience  to  the  utmost  ex- 
tremity."* The  prince  who  violates  all  laws,  who  no  longer 
observes  any  measures,  and  who  would  in  his  transports  of 
fury  take  away  the  life  of  an  innocent  person,  divests  himself 
of  his  character,  and  is  no  longer  to  be  considered  in  any 
other  light  than  that  of  an  unjust  and  outrageous  enemy, 
against  whom  his  people  are  allowed  to  defend  themselves. 
The  person  of  the  sovereign  is  sacred  and  inviolable :  but  he 
who,  after  having  lost  all  the  sentiments  of  a  sovereign,  divests 
himself  even  of  the  appearances  and  exterior  conduct  of  a 
monarch,  degrades  himself:  he  no  longer  retains  the  sacred 
character  of  a  sovereign,  and  cannot  retain  the  prerogatives 
attached  to  that  exalted  rank.  However,  if  this  prince  is  not 
a  monster, — if  he  is  furious  only  against  us  in  particular,  and  [  23  ] 
from  the  effects  of  a  sudden  transport  or  a  violent  passion, 
and  is  supportable  to  the  rest  of  the  nation,  the  respect  we 
ought  to  pay  to  the  tranquillity  of  the  state  is  such,  and  the 
respect  due  to  sovereign  majesty  so  powerful,  that  we  are 
strictly  obliged  to  seek  every  other  means  of  preservation, 
rather  than  to  put  his  person  in  danger.  Every  one  knows 
the  example  set  by  David :  he  fled,— he  kept  himself  con- 
cealed, to  secure  himself  from  Saul's  fury,  and  more  than 
once  spared  the  life  of  his  persecutor.  When  the  reason  of  ,. 
Charles  VI.  of  France  was  suddenly  disordered  by  a  fatal 
accident,  he  in  his  fury  killed  several  of  those  who  surrounded 
him :  none  of  them  thought  of  securing  his  own  life  at  the  ex- 
pense of  that  of  the  king ;  they  only  endeavoured  to  disarm 
and  secure  him.  They  did  their  duty  like  men  of  honour  and 
faithful  subjects,  in  exposing  their  lives  to  save  that  of  this 
unfortunate  monarch :  such  a  sacrifice  is  due  to  the  state  and 

*  De  Jure  Belli  &  Pacis,  lib.  i.  cap.  iv.  Z  11.  n.  2. 

12  H2  89 


23 


OF   STATES   ELECTIVE, 


BOOS 
CHAP, 


g  55.   Of 

ministers. 


K  *•  to  sovereign  majesty :  furious  from  the  derangement  of  his 
faculties,  Charles  was  not  guilty :  he  might  recover  his  health, 
and  again  become  a  good  king. 

What  has  been  said  is  sufficient  for  the  intention  of  this 
work :  the  reader  may  see  these  questions  treated  more  at 
large  in  many  books  that  are  well  known.  We  shall  conclude 
this  subject  with  an  important  observation.  A  sovereign  is 
undoubtedly  allowed  to  employ  ministers  to  ease  him  in  the 
painful  offices  of  government ;  but  he  ought  never  to  surren- 
der his  authority  to  them.  When  a  nation  chooses  a  con- 
ductor, it  is  not  with  a  view  that  he  should  deliver  up  his 
charge  into  other  hands.  Ministers  ought  only  to  be  instru- 
ments in  the  hands  of  the  prince ;  he  ought  constantly  to 
direct  them,  and  continually  endeavour  to  know  whether  they 
act  according  to  his  intentions.  If  the  imbecility  of  age,  or 
any  infirmity,  render  him  incapable  of  governing,  a  regent 
ought  to  be  nominated,  according  to  the  laws  of  the  state : 
but  when  once  the  sovereign  is  capable  of  holding  the  reins, 
let  him  insist  on  being  served,  but  never  suffer  himself  to  be 
superseded.  The  last  kings  of  France  of  the  first  race  sur- 
rendered the  government  and  authority  to  the  mayors  of  the 
palace :  thus  becoming  mere  phantoms,  they  justly  lost  the 
title  and  honours  of  a  dignity  of  which  they  had  abandoned 
the  functions.  The  nation  has  every  thing  to  gain  in  crown- 
ing an  all-powerful  minister,  for  he  will  improve  that  soil  as 
his  own  inheritance,  which  he  plundered  whilst  he  only  reaped 
precarious  advantages  from  it. 


CHAP.  V. 

CHAP.  Y.    OF    STATES    ELECTIVE,    SUCCESSIVE    OR    HEREDITARY,    AND    OF 
THOSE  CALLED  PATRIMONIAL. 


g  56.    Of         WE  have  seen  in  the  preceding  chapter,  that  it  originally 

ective       belongs  to  a  nation  to  confer  the  supreme  authority,  and  to 

ltes'         choose  the  person  by  whom  it  is  to  be  governed.  If  it  confers 

[  24  ]   the  sovereignty  on  him  for  his  own  person  only,  reserving  to 

itself  the  right  of  choosing  a  successor  after  the  sovereign's 

death,  the  state  is  elective.     As  soon  as  the  prince  is  elected 

according  to  the  laws,  he  enters  into  the  possession  of  all  the 

prerogatives  which  those  laws  annex  to  his  dignity. 

§  57.    Whe-     It  has  been  debated,  whether  elective  kings  and  princes  are 

ther  elective  real  sovereigns.     But  he  who  lays  any  stress  on  this  circum- 

kings  are     gtance  must  have  only  a  very  confused  idea  of  sovereignty. 

reigns.   "     ^ne  manner  in  which  a  prince  obtains  his  dignity  has  nothing 

to  do  with  determining  its  nature.     We  must  consider,  first, 

whether  the  nation  itself  forms  an  independent  society  (see 

90 


SUCCESSIVE,    OR    HEREDITARY,  ETC.  24 

chap.  1),  and  secondly,  what  is  the  extent  of  the  power  it  has     BOOK  i. 
intrusted  to  the  prince.     Whenever  the  chief  of  an  independ- ... CHAP>  T'- 
ent  state  really  represents  his  nation,  he  ought  to  he  consid- 
ered as  a  true  sovereign  (§  40),  even  though  his  authority  should 
be  limited  in  several  respects. 

When  a  nation  would  avoid  the  troubles  which  seldom  fail  ?  58.    Of 
to  accompany  the  election  of  a  sovereign,  it  makes  its  choice 
for  a  long  succession  of  years,  by  establishing  the  right  of 
succession,  or  by  rendering  the  crown  hereditary  in  a  family,  states. 
according  to  the  order  and  rules  that  appear  most  agreeable  The  °rigin 
to  that  nation.    The  name  of  an  Hereditary  State  or  Kingdom  jj 
is  given  to  that  where  the  successor  is  appointed  by  the  same  sion> 
law  that  regulates  the  successions  of  individuals.     The  Suc- 
cessive Kingdom  is  that  where  a  person  succeeds  according  to  a 
particular  fundamental  law  of  the  state.     Thus  the  lineal  suc- 
cession, and  of  males  alone,  is  established  in  France. 

The  right  of  succession  is  not  always  the  primitive  esta-  %  59.   Other 
blishment  of  a  nation  ;  it  may  have  been  introduced  by  the  origins  of 
concession  of  another  sovereign,  and  even  by  usurpation.    But thls  nght' 
when  it  is  supported  by  long  possession,  the  people  are  con- 
sidered as  consenting  to  it ;  and  this  tacit  consent  renders  it 
lawful,  though  the  source  be  vicious.     It  rests  then  on  the 
foundation  we  have  already  pointed  out — a  foundation  that 
alone  is  lawful  and  incapable  of  being  shaken,  and  to  which 
we  must  ever  revert. 

The  same  right,  according  to  Grotius  and  the  generality  I  60.   other 
of  writers,  may  be  derived  from  other  sources,  as  conquest,  ^cchesBtil] 
or  the  right  of  a  proprietor,  who,  being  master  of  a  country,  ^^m*  to 
should  invite  inhabitants  to  settle  there,  and  give  them  lands,  the  same 
on  condition  of  their  acknowledging  him  and  his  heirs  for  thing, 
their  sovereigns.     But  as  it  is  absurd  to  suppose  that  a  society 
of  men  can  place  themselves  in  subjection  otherwise  than  with 
a  view  to  their  own  safety  and  welfare,  and  still  more  that 
they  can  bind  their  posterity  on  any  other  footing,  it  ulti- 
mately amounts  to  the  same  thing ;  and  it  must  still  be  said 
that  the  succession  is  established  by  the  express  will,  or  the 
tacit  consent  of  the  nation,  for  the  welfare  and  safety  of  the 
state. 

It  thus  remains  an  undeniable  truth,  that  in  all  cases  the  §  61.  A  na- 
succession  is  established  or  received  only  with  a  view  to  the tion  may 
public  Avelfare  and  the  general  safety.     If  it  happened  then  ^e^oVtoe 
that  the  order  established  in  this  respect  became  destructive  succession. 
to  the  state,  the  nation  would  certainly  have  a  right  to  change 
it  by  a  new  law.     Salus  populi  suprema  lex,  the  safety  of    [  25  ] 
the  people  is  the  supreme  law ;  and  this  law  is  agreeable  to 
the  strictest  justice,  the  people  having  united  in  society  only 
with  a  view  to  their  safety  and  greater  advantage.* 

*  Ximirum,     quod     publics    salutis    bus  exigentibus,  immutari  quid  obstat? 
causa  et   communi   consensu  statutum     MARIANA,  ibid.  c.  iy. 
est,,eadem  multitudinis  voluntate,  re-  91 


25  OF   STATES   ELECTIVE, 

BOOK  i.  This  pretended  proprietary  right  attributed  to  princes  is  a 
CHAP,  v.  chjmera>  produced  by  an  abuse  which  its  supporters  would 
fain  make  of  the  laws  respecting  private  inheritances.  The 
state  neither  is  nor  can  be  a  patrimony,  since  the  end  of 
patrimony  is  the  advantage  of  the  possessor,  whereas  the 
prince  is  established  only  for  the  advantage  of  the  state.* 
The  consequence  is  evident :  if  a  nation  plainly  perceives  that 
the  heir  of  her  prince  would  be  a  pernicious  sovereign,  she  has 
a  right  to  exclude  him. 

The  authors,  whom  we  oppose,  grant  this  right  to  a  des- 
potic prince,  while  they  refuse  it  to  nations.  This  is  because 
they  consider  such  a  prince  as  a  real  proprietor  of  the  empire, 
and  will  not  acknowledge  that  the  care  of  their  own  safety, 
and  the  right  to  govern  themselves,  still  essentially  belong  to 
the  society,  although  they  have  intrusted  them,  even  without 
any  express  reserve,  to  a  monarch  and  his  heirs.  In  their 
opinion,  the  kingdom  is  the  inheritance  of  the  prince,  in  the 
same  manner  as  his  field  and  his  flocks — a  maxim  injurious 
to  human  nature,  and  which  they  would  not  have  dared  to 
advance  in  an  enlightened  age,  if  it  had  not  the  support  of 
an  authority  which  too  often  proves  stronger  than  reason  and 
justice. 

|  62.  Of  re-     A  nation  may,  for  the  same  reason,  oblige  one  branch  who 
nuncmtions.  removes  to  another  country,  to  renounce  all  claim  to  the 
crown,  as  a  daughter  who  marries  a  foreign  prince.     These 
renunciations,  required  or  approved  by  the  state,  are  per- 
fectly valid,  since  they  are  equivalent  to  a  law  that  such 
persons    and   their   posterity  should  be  excluded  from    the 
throne.     Thus  the  laws  of  England  have  for  ever  rejected 
every  Roman  Catholic.      "  Thus  a  law  of  Russia,  made  at 
[  26  ]   the  beginning  of  the  reign  of  Elizabeth,  most  wisely  excludes 
from  the  possession  of  the  crown  every  heir  possessed  of 

*  When  Philip  II.  resigned  the  been  nations  who  governed  themselves 
Netherlands  to  his  daughter  Isabella  by  popular  assemblies,  or  by  a  senate  ; 
Clara  Eugenia,  it  was  said  (according  there  have  been  others  who  intrusted 
to  the  testimony  of  Grotius)  that  it  was  the  general  management  of  their  con- 
Betting  a  dangerous  precedent,  for  a  cerns  to  princes.  For  it  is  not  to  be 
prince  to  treat  free  citizens  as  his  pro-  imagined,  it  was  added,  that  legitimate 
perty,  and  barter  them  away  like  do-  sovereignties  have  originated  from  any 
mestic  slaves;  that,  among  barbari-  other  source  than  the  consent  of  the 
ans,  indeed,  the  extraordinary  practice  people,  who  gave  themselves  all  up  to 
sometimes  obtained  of  transferring  go-  a  single  person,  or,  for  the  sake  of 
vernments  by  will  or  donation,  because  avoiding  the  tumults  and  discord  of 
those  people  were  incapable  of  discern-  elections,  to  a  whole  family ;  and  those 
ing  the  difference  between  a  prince  to  whom  they  thus  committed  them- 
and  a  master ;  but  that  those,  whom  selves  were  induced,  by  the  prospect 
superior  knowledge  enabled  to  distin-  of  honourable  pre-eminence  alone,  to 
guish  between  what  is  lawful  and  what  accept  a  dignity  by  which  they  were 
is  not,  could  plainly  perceive  that  the  bound  to  promote  the  general  welfare 
administration  of  a  state  is  the  pro-  of  their  fellow-citizens  in  preference  to 
perty  of  the  people  (thence  usually  de-  their  own  private  advantage.  GROTIUS. 
nominated  res-publica) ;  and  that,  as  in  Hist  of  the  Disturbances  in  the  Ne- 
every  period  of  the  world  there  have  therlands,  book  ii.— Edit.  A.  D.  1797. 
02 


SUCCESSIVE,    OR   HEREDITARY,    ETC.  26 

another  monarchy ;  and  thus  the  law  of  Portugal  disqualifies     BOOK  i. 
every  foreigner  who  lays  claim  to  the  crown  by  right  of  blood."*    CHAP,  v. 

Some  celebrated  authors,  in  other  respects  very  learned 
and  judicious,  have  then  deviated  from  the  true  principles  in 
treating  of  renunciations.  They  have  largely  expatiated  on 
the  rights  of  children  born  or  to  be  born,  of  the  transmission 
of  those  rights,  &c.  But  they  ought  to  have  considered  the 
succession  less  as  a  property  of  the  reigning  family,  than  as 
a  law  of  the  state.  From  this  clear  and  incontestable  prin- 
ciple, we  easily  deduce  the  whole  doctrine  of  renunciations. 
Those  required  or  approved  by  the  state  are  valid  and  sacred: 
they  are  fundamental  laws :  those  not  authorized  by  the  state 
can  only  be  obligatory  on  the  prince  who  made  them.  They 
cannot  injure  his  posterity,  and  he  himself  may  recede  from 
them  in  case  the  state  stands  in  need  of  him  and  gives  him 
an  invitation :  for  he  owes  his  services  to  a  people  who  had 
committed  their  safety  to  his  care.  For  the  same  reason, 
the  prince  cannot  lawfully  resign  at  an  unseasonable  junc- 
ture, to  the  detriment  of  the  state,  and  abandon  in  imminent 
danger  a  nation  that  had  put  itself  under  his  care.f 

In  ordinary  cases,  when  the  state  may  follow  the  established  §  63.   The 
rule  without  being  exposed  to  very  great  and  manifest  danger,  orde.r  of  8UO' 
it  is  certain  that  every  descendant  ought  to  succeed  when  the  ought  com 
order  of  succession  calls  him  to  the  throne,  however  great  monly  to  be 
may  appear  his  incapacity  to  rule  by  himself.    This  is  a  con-  kept.  (23) 
sequence  of  the  spirit  of  the  law  that  established  the  succession : 
for  the  people  had  recourse  to  it  only  to  prevent  the  troubles 
which  would  otherwise  be  almost  inevitable  at  every  change. 
Now  little  advances  would  have  been  made  towards  obtaining 
this  end,  if,  at  the  death  of  a  prince,  the  people  were  allowed 
to  examine  the  capacity  of  his  heir,  before  they  acknowledged 
him  for  their  sovereign.     "  What  a  door  would  this  open  for 
usurpers  or  malcontents!     It  was  to  avoid  these  inconve- 
niences that  the  order  of  succession  was  established;  and 
nothing  more  wise  could  have  been  done,  since  by  this  means 
no  more  is  required  than  his  being  the  king's  son,  and  his 
being  actually  alive,  which  can  admit  of  no  dispute :  but,  on 
the  other  hand,  there  is  no  rule  fixed  to  judge  of  the  capacity 
or  incapacity  to  reign."J     Though  the  succession  was  not 
established  for  the  particular  advantage  of  the  sovereign  and 
his  family,  but  for  that  of  the  state,  the  heir-apparent  has 
nevertheless  a  right,  to  which  justice  requires  that  regard 
should  be  paid.      His  right  is  subordinate  to  that  of  the 
nation,  and  to  the  safety  of  the  state ;  but  it  ought  to  take 
place  when  the  public  welfare  does  not  oppose  it.  (23) 

*  Spirit  of  Laws,  book  xxvi.  chap.  J  Memorial  in  behalf  of  Madame  de 
xxiii.,  where  may  be  seen  very  good  po-  Longueville,  concerning  the  principality 
litical  reasons  for  these  regulations.  of  Neufchatel,  in  1672. 

-f-  See  further  on.  (23)  See  this  doctrine  illustrated  in  1 

Bla.  Com.  247-8.— C. 

93 


27 


BOOK  I. 
CHAP.   V. 

§64.      Of 

regents. 


g  65.  indi- 
visibiiity  of 
overeign- 


§  66.    Who 
are  to  de- 
cide  dis- 


successon 
to  a  sove- 
reignty. 


OF   STATES   ELECTIVE, 

These  reasons  have  the  greater  weight,  since  the  law  or 
the  state  may  remedy  the  incapacity  of  the  prince  by  nomi- 
nating a  regent,  as  is  practised  in  cases  of  minority.  This 
regent  is,  during  the  whole  time  of  his  administration,  invested 
with  the  royal  authority ;  but  he  exercises  it  in  the  king's 
name.  (24) 

The  principles  we  have  just  established  ,  pecting  the  suc- 
cessive or  hereditary  right,  manifestly  show  that  a  prince 
has  no  right  to  divide  his  state  among  his  children.  Every 
sovereignty,  properly  so  called,  is,  in  its  own  nature,  one  and 
indivisible,  since  those  who  have  united  in  society  cannot  be 
separated  in  spite  of  themselves.  Those  partitions,  so  con- 
trary to  the  nature  of  sovereignty  and  the  preservation  of 
states,  have  been  much  in  use ;  but  an  end  has  been  put  to 
them,  wherever  the  people,  and  princes  themselves,  have  had 
a  clear  view  of  their  greatest  interest,  and  the  foundation  of 
their  safety. 

But  when  a  prince  has  united  several  different  nations 
under  his  authority,  his  empire  is  then  properly  an  assem- 
blage of  several  societies  subject  to  the  same  head;  and  there 
exists  no  natural  objection  to  his  dividing  them  among  his 
children :  he  may  distribute  them,  if  there  be  neither  law  nor 
compact  to  the  contrary,  and  if  each  of  those  nations  consents 
to  receive  the  sovereign  he  appoints  for  it.  For  this  reason, 
France  was  divisible  under  the  first  two  races.*  But  being 
entirely  consolidated  under  the  third,  it  has  since  been  con- 
sidered as  a  single  kingdom ;  it  has  become  indivisible,  and  a 
fundamental  law  has  declared  it  so.  That  law,  wisely  pro- 
viding for  the  preservation  and  splendour  of  the  kingdom, 
irrevocably  unites  to  the  crown  all  the  acquisitions  of  its  kings. 

The  same  principles  will  also  furnish  us  with  the  solution 
of  a  celebrated  question.  When  the  right  of  succession 
becomes  uncertain  in  a  successive  or  hereditary  state,  and 
two  or  three  competitors  lay  claim  to  the  crown,  it  is  asked, 
"Who  shall  be  the  judge  of  their  pretensions?"  Some 
learned  men,  resting  on  the  opinion  that  sovereigns  are  sub- 
ject to  no  other  judge  but  God,  have  maintained  that  the 
competitors  for  the  crown,  while  their  right  remains  uncer- 
tain, ought  either  to  come  to  an  amicable  compromise,  enter 
into  articles  among  themselves,  choose  arbitrators,  have  re- 
course even  to  the  drawing  of  lots,  or,  finally,  determine  the 
dispute  by  arms  ;  and  that  the  subjects  cannot  in  any  manner 
decide  the  question.  One  might  be  astonished  that  celebrated 
authors  should  have  maintained  such  a  doctrine.  But  since, 
even  in  speculative  philosophy,  there  is  nothing  so  absurd  as 
not  to  have  been  advanced  by  one  or  other  of  the  philoso- 


(24)  Ante,  p.  26,  n.—  C. 
*  But  it  is  to  be  observed  that  those 
partitions  were  not  made  without  the 
94 


approbation  and  consent  of  the  respecf- 
ive  states. 


SUCCESSIVE,    OR   HEREDITARY,    ETC. 

pliers,*  what  can  be  expected  from  the  human  mind,  when     BOOK 
seduced  by  interest  or  fear  ?     What !  in  a  question  that  con — CHAP' 
cerns  none  so  much  as  the  nation — that  relates  to  a  power 
established  only  with  a  view  to  the  happiness  of  the  people — 
in  a  quarrel  that  is  to  decide  for  ever  their  dearest  interests, 
and  their  very  safety — are  they  to  stand  by  as  unconcerned 
spectators  ?    Are  they  to  allow  strangers,  or  the  blind  decision 
of  arms,  to  appoint  them  a  master,  as  a  flock  of  sheep  are  to 
wait  till  it  be  determined  whether  they  are  to  be  delivered 
up  to  the  butcher,  or  restored  to  the  care  of  their  shepherd  ? 

But,  say  they,  the  nation  has  divested  itself  of  all  juris- 
diction, by  giving  itself  up  to  a  sovereign ;  it  has  submitted  to 
the  reigning  family ;  it  has  given  to  those  who  are  descended 
from  that  family  a  right  which  nobody  can  take  from  them ; 
it  has  established  them  its  superiors,  and  can  no  longer  judge 
them.  Very  well !  But  does  it  not  belong  to  that  same 
nation  to  acknowledge  the  person  to  whom  its  duty  binds  it, 
and  prevent  its  being  delivered  up  to  another  ?  And  since 
it  has  established  the  law  of  succession,  who  is  more  capable 
or  has  a  better  right  to  identify  the  individual  whom  the 
fundamental  law  had  in  view,  and  has  pointed  out  as  the  suc- 
cessor? We  may  affirm,  then,  without  hesitation,  that  the 
decision  of  this  grand  controversy  belongs  to  the  nation,  and 
to  the  nation  alone.  Even  if  the  competitors  have  agreed 
among  themselves,  or  have  chosen,  arbitrators,  the  nation  is 
not  obliged  to  submit  to  their  regulations,  unless  it  has  con- 
sented to  the  transaction  or  compromise — princes  not  acknow- 
ledged, and  whose  right  is  uncertain,  not  being  in  any  manner  \ 
able  to  dispose  of  its  obedience.  The  nation  acknowledges 
no  superior  judge  in  an  affair  that  relates  to  its  most  sacred 
duties  and  most  precious  rights. 

Grotius  and  Puffendorf  differ  in  reality  but  little  from  our 
opinion ;  but  would  not  have  the  decision  of  the  people  or 
state  called  a  juridical  sentence  (judicium  jurisdictionis). 
Well !  be  it  so :  we  shall  not  dispute  about  words.  However, 
there  is  something  more  in  the  case  than  a  mere  examination 
of  the  competitors'  rights,  in  order  to  submit  to  him  who  has 
the  best.  All  the  disputes  that  arise  in  society  are  to  be 
judged  and  decided  by  the  public  authority.  As  soon  as  the 
right  of  succession  is  found  uncertain,  the  sovereign  authority 
returns  for  a  time  to  the  body  of  the  state,  which  is  to  exer- 
cise it,  either  by  itself  or  by  it  representatives,  till  the  true 
sovereign  be  known.  "  The  contest  on  this  right  suspending 
the  functions  in  the  person  of  the  sovereign,  the  authority 
naturally  returns  to  the  subjects,  not  for  them  to  retain  it,  but 
to  prove  on  which  of  the  competitors  it  lawfully  devolves,  and 
then  to  commit  it  to  his  hands.  It  would  not  be  difficult  to 


*  Ncsico  quomodo  nihil  tarn  absurde    philosophorum.      Cicero,     do    Divinat. 
dici  potest,  quod  non  dicatur  ab  aliquo     lib.  ii. 

95 


28  OF   STATES   ELECTIVE, 

BOOK  r.     support,  by  an  infinite  number  of  examples,  a  truth  so  evi- 

~.  CHAP.  v*    dent  by  the  light  of  reason  :  it  is  sufficient  to  remember  that 

the  states  of  France,  after  the  death  of  Charles  the  Fair, 

terminated  the  famous  dispute  between  Philip  de  Valois  and 

L  29  ]   the  king  of  England  (Edward  III.),  and  that  those  states, 

though  subject  to  him  in  whose  favour  they  granted  the  de- 

cision, were  nevertheless  the  judges  of  the  dispute." 


* 


of  Arragon  that  decided  the  succession  to  that  kingdom,  in 
favour  of  Ferdinand,  grandfather  of  Ferdinand  the  husband 
of  Isabella,  queen  of  Castile,  in  preference  to  the  other  re- 
lations of  Martin,  king  of  Arragon,  who  asserted  that  the 
kingdom  belonged  to  them.f 

In  the  kingdom  of  Jerusalem  also,  it  was  the  states  that 
decided  the  disputes  of  those  who  made  pretensions  to  it  ;  as 
is  proved  by  several  examples  in  the  foreign  political  history.! 
The  states  of  the  principality  of  Neufchatel  have  often,  in 
the  form  of  a  juridical  sentence,  pronounced  on  the  succes- 
sion to  the  sovereignty.  In  the  year  1707,  they  decided  be- 
tween a  great  number  of  competitors,  and  their  decision  in 
favour  of  the  king  of  Prussia  was  acknowledged  by  all  Europe 
in  the  treaty  of  Utrecht. 

§  67.  That  The  better  to  secure  the  succession  in  a  certain  and  inva- 
the  right  to  riable  order,  it  is  at  present  an  established  rule  in  all  Christian 
the  succes-  states  (Portugal  excepted),  that  no  descendant  of  the  sovereign 
noTtTde-  can  succeed  to  the  crown,  unless  he  be  the  issue  of  a  marriage 
pend  on  the  that  is  conformable  to  the  laws  of  the  country.  As  the  nation 
judgment  has  established  the  succession,  to  the  nation  alone  belongs  the 
of  a  foreign  p0wer  Of  acknowledging  those  who  are  capable  of  succeeding  ; 
power'  and  consequently,  on  its  judgment  and  laws  alone  must  de- 
pend the  validity  of  the  marriage  of  its  sovereigns,  and  the 
legitimacy  of  their  birth. 

If  education  had  not  the  power  of  familiarizing  the  human 
mind  to  the  greatest  absurdities,  is  there  any  man  of  sense 
who  would  not  be  struck  with  astonishment  to  see  so  many 
nations  suffer  the  legitimacy  and  right  of  their  princes  to  de- 
pend on  a  foreign  power  ?  The  court  of  Rome  has  invented 
an  infinite  number  of  obstructions  and  cases  of  invalidity  in 
marriages,  and  at  the  same  time  arrogates  to  itself  the  right 
of  judging  of  their  validity,  and  of  removing  the  obstruc- 
tions ;  so  that  a  prince  of  its  communion  cannot  in  certain 
cases  be  so  much  his  own  master  as  to  contract  a  marriage 
necessary  to  the  safety  of  the  state.  Jane,  the  only  daughter 
of  Henry  IV,,  king  of  Castile,  found  this  true  by  cruel  expe- 
rience. Some  rebels  published  abroad  that  she  owed  her  birth 
to  Bertrand  de  la  Cueva,  the  king's  favourite  ;  and  notwith- 

*  Answer  in  behalf  of  Madame  de  J  See    the    same    memorial,    which 

Longueville  to  a  memorial  in  behalf  of  quotes  P.  Labbe's  Royal  Abridgment, 

Madame  de  Nemours.               t  Ibid.  page  501,  Ac. 
96 


SUCCESSIVE,    OR   HEREDITARY,    ETC.  29 

standing  the  declarations  and  last  will  of  that  prince,  who    BOOK  i. 
explicitly  and  invariably  acknowledged  Jane  for  his  daughter,    CHAP'  Y' 
and  nominated  her  his  heiress,  they  called  to  the  crown  Isa- 
bella, Henry's  sister,  and  wife  to  Ferdinand,  heir  of  Arragon. 
The  grandees  of  Jane's  party  had  provided  her  a  powerful   [  30  ] 
resource,  by  negotiating  a  marriage  between  her  and  Alphon- 
sus,  king  of  Portugal :  but  as  that  prince  was  Jane's  uncle, 
it  was  necessary  to  obtain  a  dispensation  from  the  pope  ;  and 
Pius  II.,  who  was  in  the  interest  of  Ferdinand  and  Isabella, 
refused  to  grant  the  dispensation,  though  such  alliances  were 
then  very  common.     These  difficulties  cooled  the  ardour  of 
the  Portuguese  monarch,  and  abated  the  zeal  of  the  faithful 
Castilians.     Every  thing  succeeded  with  Isabella,  and  the  un- 
fortunate Jane  took  the  veil,  in  order  to  secure,  by  this  heroic 
sacrifice,  the  peace  of  Castile.* 

If  the  prince  proceeds  and  marries,  notwithstanding  the 
pope's  refusal,  he  exposes  his  dominions  to  the  most  fatal 
troubles.  What  would  have  become  of  England,  if  the  Re- 
formation had  not  been  happily  established,  when  the  pope 
presumed  to  declare  Queen  Elizabeth  illegitimate,  and  incapa- 
ble of  wearing  the  crown  ? 

A  great  emperor,  Lewis  of  Bavaria,  boldly  asserted  the 
rights  of  his  crown  in  this  respect.  In  the  diplomatic  code 
of  the  law  of  nations  by  Leibnitz,  we  findf  two  acts,  in  which 
that  prince  condemns,  as  an  invasion  of  the  imperial  autho- 
rity, the  doctrine  that  attributes  to  any  other  power  but  his 
own,  the  right  of  granting  dispensations,  and  of  judging  of 
the  validity  of  marriages,  in  the  places  under  his  jurisdiction : 
but  he  was  neither  well  supported  in  his  lifetime,  nor  imitated 
by  his  successors. 

Finally,  there  are  states  whose  sovereign  may  choose  his  ? 68-    Of 
successor,  and  even  transfer  the  crown  to  another  during  his  state.s  cal.le,d 

' , & patrimonial. 

*  I  take  this  historical  passage  from  says  he,  nobis  rite  debitam  et  conces- 

M.   Du  Port  de  Tertre's   Conspiracies,  sum. 

To  him  I  refer ;  for  I  have  not  the  ori-  P.  156.    Forma    dispensations  super 

ginal  historians  by  me.     However,  I  do  amnitate     consanguinitatis     inter    Lu- 

not  enter  into  the  question  relating  to  dovicum  marchionem   Brandenburg  et 

the  birth  of  Jane :  this  would  here  be  Margaretham  ducissam  Kurinthitc,  nee 

of  no  use.     The  princess  had  not  been  non  legitimatio   liberorum  procreando- 

declared   a  bastard    according  to   the  rum,  fautic  per  dom.  Ludovic.  IV.  Rom. 

laws ;   the   king  acknowledged  her  for  imper. 

his  daughter ;  and  besides,  whether  she  It  is  only  human  law,  says  the  empe- 

was  or  was  not  legitimate,  the  incon-  ror,  that  hinders  these  marriages  intra 

veniences  resulting  from  the  pope's  re-  gradus  affinitatis    sangninis,  prsesertim 

fusal  still  remained  the  same  with  re-  intra  fratres  et  sorores.     De  cujus  legis 

spect  to  her  and  the  king  of  Portugal.—  prseceptis  dispensare  solummodo  pertinet 

Note,  edit.  1797.  ad  auctoritatem  imperatoris  seu  prinei- 

•{•  P.  154.     Forma  divortii   matrimo-  pis  Romanorum.     He  then  opposes  and 

nialis  inter  Johannern  filium  regis  Bo-  condemns  the  opinion  of  those  who  dare 

hemiae  et   Margaretham  ducissam  Ka-  to  say  that  these  dispensations  depend 

rinthiae.     This  divorce  is  given  by  the  on  ecclesiastics.     Both  this  act  and  the 

emperor  on   account  of  the   impoten-  former  are  dated  in   the  year  1341. — 

oy  of  the  husband,  per  auctoritatem,  Note,  edit.  A.  D.  1797. 

13  I                                                   97 


30  OF   STATES   ELECTIVE, 

BOOK  i.  life:  these  are  commonly  called  patrimonial t kingdoms  or 
.-CHAP.  Y'  states  :  but  let  us  reject  so  unjust  and  so  improper  an  epithet, 
which  can  only  serve  to  inspire  some  sovereigns  with  ideas 
very  opposite  to  those  they  ought  to  entertain.  We  have 
shown  (§  61)  that  a  state  cannot  be  a  patrimony.  But  it  may 
happen  that  a  nation,  either  through  unbounded  confidence  in 
its  prince,  or  for  some  other  reason,  has  intrusted  him  with 
the  care  of  appointing  his  successor,  and  even  consented  to 
[  31  ]  receive,  if  he  thinks  proper,  another  sovereign  from  his  hands. 
Thus  we  see  that  Peter  I.,  emperor  of  Russia,  nominated  his 
wife  to  succeed  him,  though  he  had  children. 

I  69.  Every  But  when  a  prince  chooses  his  successor,  or  when  he  cedes 
true  sove-  the  crown  to  another, — properly  speaking,  he  only  nominates, 
reignty  is  jyy  virtue  of  the  power  with  which  he  is,  either  expressly  or 
e'  by  tacit  consent,  intrusted — he  only  nominates,  I  say,  the 
person  who  is  to  govern  the  state  after  him.  This  neither  is 
nor  can  be  an  alienation,  properly  so  called.  Every  true 
sovereignty  is,  in  its  own  nature,  unalienable.  We  shall  be 
easily  convinced  of  this,  if  we  pay  attention  to  the  origin  and 
end  of  political  society,  and  of  the  supreme  authority.  A 
nation  becomes  incorporated  into  a  society,  to  labour  for  the 
common  welfare  as  it  shall  think  proper,  and  to  live  accord- 
ing to  its  own  laws.  With  this  view  it  establishes  a  public 
authority.  If  it  intrusts  that  authority  to  a  prince,  even 
with  the  power  of  transferring  it  to  other  hands,  this  can 
never  take  place  without  the  express  and  unanimous  consent 
of  the  citizens,  with  the  right  of  really  alienating  or  subject- 
ing the  state  to  another  body  politic :  for  the  individuals  who 
have  formed  this  society,  entered  into  it  in  order  to  live  in 
an  independent  state,  and  not  under  a  foreign  yoke.  Let 
not  any  other  source  of  this  right  be  alleged  in  objection  to 
our  argument,  as  conquest,  for  instance  ;  for  we  have  already 
shown  (§  60)  that  these  different  sources  ultimately  revert  to 
the  true  principles  on  which  all  just  governments  are  founded. 
While  the  victor  does  not  treat  his  conquest  according  to 
those  principles,  the  state  of  war  still  in  some  measure  sub- 
sists :  but  the  moment  he  places  it  in  a  civil  state,  his  rights 
are  proportioned  by  the  principles  of  that  state. 

I  know  that  many  authors,  and  particularly  Grotius,*  give 
long  enumerations  of  the  alienations  of  sovereignties.  But 
the  examples  often  prove  only  the  abuse  of  power,  not  the 
right.  And  besides,  the  people  consented  to  the  alienation, 
either  willingly  or  by  force.  What  could  the  inhabitants  of 
Pergamus,  Bithynia,  and  Gyrene  do,  when  their  kings  gave 
them,  by  their  last  wills,  to  the  Roman  people  ?  Nothing 
remained  for  them,  but  to  submit  with  a  good  grace  to  so 
powerful  a  legatee.  To  furnish  an  example  capable  of  serving 
as  an  authority,  they  should  have  produced  an  instance  of  a 

*  Grotius  De  jure  Belli  et  Pacis,  lib.  i.  cap.  iii.  I  12. 


SUCCESSIVE,    OR   HEREDITARY,   ETC.  31 

people  resisting  a  similar  bequest  of  their  sovereign,  and    BOOK  i. 
•whose  resistance  had  been  generally  condemned  as  unjust  and    CHAP'  Y> . 
rebellious.     Had  Peter  I.,  who  nominated  his  wife  to  succeed 
him,  attempted  to  subject  his  empire  to  the  grand  seignior,  or 
to  some  other  neighbouring  power,  can  we  imagine  that  the 
Russians  would  have  suffered  it,  or  that  their  resistance  would 
have  passed  for  a  revolt  ?     We  do  not  find  in  Europe  any 
great  state  that  is  reputed  alienable.     If  some  petty  princi- 
palities  have   been   considered  as   such,  it  is  because  they 
were  not  true  sovereignties.     They  were  fiefs  of  the  empire, 
enjoying  a  greater  or  less  degree  of  liberty :  their  masters    L  "*  J 
made  a  traffic  of  the  rights  they  possessed  over  those  terri- 
tories :  but  they  could  not  withdraw  them  from  a  dependence 
on  the  empire. 

Let  us  conclude  then,  that,  as  the  nation  alone  has  a  right 
to  subject  itself  to  a  foreign  power,  the  right  of  really  alien- 
ating the  state  can  never  belong  to  the  sovereign,  unless  it 
be  expressly  given  him  by  the  entire  body  of  the  people.* 
Neither  are  we  to  presume  that  he  possesses  a  right  to  nomi- 
nate his  successor  or  surrender  the  sceptre  to  other  hands, — a 
right  which  must  be  founded  on  an  express  consent,  on  a  law 
of  the  state,  or  on  long  custom,  justified  by  the  tacit  consent 
of  the  people. 

If  the  power  of  nominating  his  successor  is  intrusted  to  the  §  70.   Duty 
sovereign,  he  ought  to  have  no  other  view  in  his  choice  but of  a  prince 
the  advantage  and  safety  of  the  state.     He  himself  was  es-  W^18J|™~ 
tablished  only  for  this  end  (§  39) ;  the  liberty  of  transferring  nominate  ° 
his  power  to  another  could  then  be  granted  to  him  only  with  his  suc- 
the  same  view.     It  would  be  absurd  to  consider  it  as  a  prero-  cessor. 
gative  useful  to  the  prince,  and  which  he  may  turn  to  his  own 
private  advantage.  Peter  the  Great  proposed  only  the  welfare 
of  the  empire  when  he  left  the  crown  to  his  wife.     He  knew 
that  heroine  to  be  the  most  capable  person  to  follow  his  views, 
and  perfect  the  great  things  he  had  begun,  and  therefore 
preferred  her  to  his  son,  who  was  still  too  young.  If  we  often 
found  on  the  throne  such  elevated  minds  as  Peter's,  a  nation 
could  not  adopt  a  wiser  plan,  in  order  to  ensure  to  itself  a  good 
government,  than  to  intrust  the  prince,  by  a  fundamental  law, 
with  the  power  of  appointing  his  successor.     This  would  be  a 
much  more  certain  method  than  the  order  of  birth.     The  Ro- 
man emperors,  who  had  no  male  children,  appointed  a  succes- 
sor by  adoption.     To  this  custom  Rome  was  indebted  for  a       * 

*  The  pope,  opposing  the  attempt  them."  On  which  occasion  the  French 
made  upon  England  by  Louis,  the  son  nobles  unanimously  exclaimed,  that  they 
of  Philip  Augustus,  and  alleging,  as  his  would,  to  their  last  breath,  maintain 
pretext,  that  John  had  rendered  himself  this  truth,  "  that  no  prince  can,  of  his 
a  vassal  of  the  holy  see,  received  for  own  private  will,  give  away  his  king- 
answer,  among  other  arguments,  "  that  dom,  or  render  it  tributary,  and  thus 
a  sovereign  had  no  right  to  dispose  of  enslave  the  nobility."  Velly's  Hist  of 
his  states  without  the  consent  of  his  France,  vol.  iii.  p.  491. 
barons,  who  were  bound  to  defend 

99 


32 


PRINCIPAL   OBJECTS   OF 


BOOK  I. 
CHAP.  V. 


§71.  He 
must  have 
at  least  a 
tacit  rati- 
fication. 


[33] 


series  of  sovereigns  unequalled  in  history, — Nerva,  Trajan, 
.  Adrian,  Antoninus,  Marcus  Aurelius.  What  princes  !  Does 
the  right  of  birth  often  place  such  on  the  throne  ? 

We  may  go  still  farther,  and  boldly  assert,  that,  as  the 
safety  of  the  whole  nation  is  deeply  interested  in  so  import- 
ant a  transaction,  the  consent  and  ratification  of  the  people 
or  state  is  necessary  to  give  it  full  and  entire  effect, — at  least 
their  tacit  consent  and  ratification.  If  an  emperor  of  Russia 
thought  proper  to  nominate  for  his  successor  a  person  noto- 
riously unworthy  of  the  crown,  it  is  not  at  all  probable  that 
vast  empire  would  blindly  submit  to  so  pernicious  an  appoint- 
ment. And  who  shall  presume  to  blame  a  nation  for  refus- 
ing to  run  headlong  to  ruin  out  of  respect  to  the  last  orders 
)f  its  prince  ?  As  soon  as  the  people  submit  to  the  sovereign 
appointed  to  rule  over  them,  they  tacitly  ratify  the  choice 
made  by  the  last  prince ;  and  the  new  monarch  enters  into 
all  the  rights  of  his  predecessor. 


ties  of  the 
sovereign. 


CHAP.  VI. 

CHAP,  vi.    PRINCIPAL    OBJECTS    OF    A    GOOD    GOVERNMENT ;    AND    FIRST 
TO   PROVIDE   FOR   THE   NECESSITIES   OF   THE  NATION. 

§  72.  The  AFTER  these  observations  on  the  constitution  of  the  state, 
object  of  so- let  us  now  proceed  to  the  principal  objects  of  a  good  govern- 
ment. We  have  seen  above  (§§  41  and  42)  that  the  prince, 
on  his  being  invested  with  the  sovereign  authority,  is  charged 
with  the  duties  of  the  nation  in  relation  to  government.  In 
treating  of  the  principal  objects  of  a  wise  administration,  we 
at  once  show  the  duties  of  a  nation  towards  itself,  and  those 
of  the  sovereign  towards  his  people. 

A  wise  conductor  of  the  state  will  find  in  the  objects  of 
civil  society  the  general  rule  and  indication  of  his  duties. 
The  society  is  established  with  the  view  of  procuring,  to  those 
who  are  its  members,  the  necessaries,  conveniences,  and  even 
pleasures  of  life,  and,  in  general,  every  thing  necessary  to 
their  happiness, — of  enabling  each   individual  peaceably  to 
enjoy  his  own  property,  and  to  obtain  justice  with  safety  and 
certainty, — and,  finally,  of  defending  themselves  in  a  body 
He  ought  to  against  all  external  violence  (§  15).     The  nation,  or  its  con- 
procure        ductor,  should  first  apply  to  the  business  of  providing  for  all 
plenty.        the  wants  of  the  people,  and  producing  a  happy  plenty  of  all 
the  necessaries  of  life,  with  its  conveniences  and  innnocent 
and  laudable  enjoyments.  (25)     As  an  easy  life  without  lux- 

(25)  See  the  general  doctrine,  that  the  at  large,  2  Malthus,  433 ;  2  Smith,  W.  N. 

happiness  of  a  people   depends  on  the  200 ;  2  Paley,  Mor.    Phil.  345 ;    Sir  J. 

quantity  of  productive  labour  and  em-  Child  on  Trade,  167-8 ;  and  Tucker  on 

ployment,   and  the   consequent  return  Trade,  part  ii.  sections  4,  7,  8 ;  1  Chit- 

of  produce  and  remuneration,  discussed  ty's  Commercial  Law,  1,  Ac. — C. 
100 


A   GOOD   GOVERNMENT.  33 

ury  contributes  to  the  happiness  of  men,  it  likewise  enables    BOOK  i. 
them  to  labour  with  greater  safety  and  success  after  their  CHAF'  YI> 
own  perfection,  which  is  their  grand  and  principal  duty,  and 
one  of  the  ends  they  ought  to  have  in  view  when  they  unite 
in  society. 

To  succeed  in  procuring  this  abundance  of  every  thing,  it  §  73.    To 
is  necessary  to  take  care  that  there  be  a  sufficient  number  of  take  care 
able  workmen  in  every  useful  or  necessary  profession.  (26)  J*a*  JJjJJ8 
An  attentive  application  on  the  part  of  government,  wise  re-  ci*  *t8nnn[_ 
gulations,  and  assistance  properly  granted,  will  produce  this  ber  of  work- 
effect,  without  using  constraint,  which  is  always  fatal  to  in-  men. 
dustry. 

Those  workmen  that  are  useful  ought  to  be  retained  in  §  74.   To 
the  state  ;  to  succeed  in  retaining  them,  the  public  authority  prevent  the 
has   certainly   a  right   to  use   contraint,   if  necessary.  (27) 
Every  citizen  owes  his  personal  services  to  his  country ;  and  athat 
mechanic,  in  particular,  who  has  been  reared,  educated,  and  useful, 
instructed  in  its  bosom,  cannot  lawfully  leave  it,  and  carry  to 
a  foreign  land  that  industry  which  he  acquired  at  home,  un- 
less his  country  has  no  occasion  for  him,  (27)  or  he  cannot 
there  obtain  the  just  fruit  of  his  labour  and  abilities.     Em-   [  34  ] 
ployment  must  then  be  procured  for  him ;  and,  if,  while  able 
to  obtain  a  decent  livelihood  in  his  own  country,  he  would 
without  reason  abandon  it,  the  state  has  a  right  to  detain 
him.  (28)     But  a  very  moderate  use  ought  to  be  made  of  this 
right,   and  only  in  important  or  necessary  cases.     Liberty 
is  the  soul  of  abilities  and  industry :  frequently  a  mechanic 
or  an  artist,  after  having  long  travelled  abroad,  is  attracted 
home  to  his  native  soil  by  a  natural  affection,  and  returns 
more  expert  and  better  qualified  to  render  his  country  useful 
services.     If  certain  extraordinary  cases  be  excepted,  it  is  best 
in  this  affair  to  practise  the  mild  methods  of  protection,  ea- -/,:;,.  , 
couragement,  &c.,  and  to  leave  the  rest  to  that  natural  love 
felt  by  all  men  for  the  places  of  their  birth. 

As  to  those  emissaries  who  come  into  a  country  to  entice  \  75.  Emis- 
away  useful  subjects,  the  sovereign  has  a  right  to  punish  them  saries  who 
severely,  and  has  just  cause  of  complaint  against  the  power  entice  them 
by  whom  they  are  employed. 

In  another  place,  we  shall  treat  more  particularly  of  the 
general  question,  whether  a  citizen  be  permitted  to  quit  the 

(26)  There  were  in  England  many  this  rule,  5   Geo.  I.  c.  27;  23  Geo.  II. 
enactments    enforcing    this     supposed  c.  13 ;  14  Geo.  III.  c.  71 ;  4  Bla.  Com. 
policy,  and    prohibiting  various  work-  160 ;  but  repealed  by  5  Geo.  IV.  c.  97. 
men  from  leaving  the  kingdom.     See  5  — C. 

Geo.  I.  c.  27;   23  Geo.  II.  c.  13;  14  (28)  See  also  the  power  of  prevent- 

Geo.  III.  c.  71 ;  4  Bla.  Com.  160.     But,  ing  a  subject,  or  even  a  foreigner,  going 

according  to  more  modern  policy,  these  abroad.     Flack  v.  Holm,  1  Jac.  &  Walk. 

enactments  were  repealed  by  5  Geo.  IV.  Rep.  405,  and  post,  $  222  and  Book  II. 

c.  97.-C.  |  108.-C. 

(27)  See  the  English  acts  enforcing 

1 2  101 


34  OF   THE   CULTIVATION   OF   THE   SOIL. 

BOOK  i.     society  of  which  he  is  a  member.     The  particular  reasons 
CHAP.  vr.  concern}ng  useful  workmen  are  sufficient  here. 


1 76.   La-        The  state  ought  to  encourage  labour,    to  animate  indus- 
bour  and      try,  (29)  to  excite  abilities,  to  propose  honours,  rewards,  privi- 
musTbYen   ^e8es>  an(^  so  *°  or(^er  matters  that  every  one  may  live  by  his 
couraged.     industry.     In  this  particular,  England  deserves  to  be  held  up 
as  an  example.     The  parliament  incessantly  attends  to  these 
important   affairs,    in   which  neither    care   nor   expense   is 
spared.  (30)     And  do  we  not  even  see  a  society  of  excellent 
citizens  formed  with  this  view,  and   devoting   considerable 
sums  to  this  use  ?     Premiums  are  also  distributed  in  Ireland 
to  the  mechanics  who  most  distinguish  themselves  in  their  pro- 
fession.    Can  such  a  state  fail  of  being  powerful  and  happy  ? 


CHAP  VII. 

OF   THE   CULTIVATION   OF   THE   SOIL.  (31) 


§  77.   The        OF  all  the  arts,  tillage,  or  agriculture,  is  doubtless  the  most 

utility  of      useful  and  necessary,  as  being  the  source  whence  the  nation 

tillage.  (31)  derives  its  subsistence.     The  cultivation  of  the  soil  causes  it 

to  produce  an  infinite  increase ;  it  forms  the  surest  resource 

and  the  most  solid  fund  of  riches  and  commerce,  for  a  nation 

that  enjoys  a  happy  climate. 

§  78.  Regu-      This  object  then  deserves  the  utmost  attention  of  the  go- 
lations  ne-    yernment.     The  sovereign  ought  to  neglect  no  means  of  ren- 
thisTespect  Bering  the  land  under  his  jurisdiction  as  well  cultivated  as 
possible.     He  ought  not  to  allow  either  communities  or  pri- 
vate persons  to  acquire  large  tracts  of  land,  and  leave  them 
For  the  dis-  uncultivated.     Those  rights  of  common,  which  deprive  the  pro- 
tribution  of  prietor  of  the  free  liberty  of  disposing  of  his  land — which  will 
land-  not  allow  him  to  enclose  and  cultivate  it  in  the  most  advan- 

[  35  ]  tageous  manner ;  those  rights,  I  say,  are  inimical  to  the  wel- 
fare of  the  state,  and  ought  to  be  suppressed,  or  reduced  to 
just  bounds.  Notwithstanding  the  introduction  of  private 
property  among  the  citizens,  the  nation  has  still  a  right  to 
take  the  most  effectual  measures  to  cause  the  aggregate  soil 
of  the  country  to  produce  the  greatest  and  most  advantageous 
revenue  possible.  (32) 

(29)  Ante,  $  72,  note  (25). — C.  gislative  enactments  respecting  the  cul  • 

(30)  How  far  the  interference  of  the  tivation  of  the  soil  or  employment  of 
legislature  is  advisable,  and  when — see  its  produce,  each  individual  being  left 
the  authorities  and  arguments  collected,  to  his  own   discretion ;    but  to  prevent 
1  Chitty's  Commercial  Law,  4  to  7,  and  the  injurious  sale  of  farming  produce, 
post,  $  98. — C.  thereby  impoverishing  the  land,  there  is 

(31)  As  to  the  subject  of  this  chapter,  an  express  enactment  enforcing  public 
see   further   authorities,  Chitty's    Com-  policy  in  that  respect.     See  56  Geo.  III. 
mercial  Law,  vol.  i.  chap.  1. — C.  c.  50,  and  its  recitals.     In  France  there 

(32)  In  England    there  are  few  le-    are   express  provisions  punishing  indi- 
102 


OF  THE   CULTIVATION   OF   THE   SOIL. 


35 


The  government  ought  carefully  to  avoid  every  thing  ca-     BOOK  i. 
pable  of  discouraging  the  husbandman,  or  of  diverting  him  — 
from  the  labours  of  agriculture.    Those  taxes  —  those  excessive  ?  79-    For 
and  ill-proportioned  impositions,  the  burden  of  which  falls  jioenpjf  ^us- 
almost  entirely  on  the  cultivators  —  and  the  oppressions  they  bandmen. 
suffer  from  the  officers  who  levy  them  —  deprive  the  unhappy 
peasant  of  the  means  of  cultivating  the  earth,  and  depopulate 
the  country.     Spain  is  the  most  fertile  and  the  worst  culti- 
vated country  in  Europe.     The  church  there  possesses  too 
much  land  ;   and  the  contractors  for  the  royal  magazines, 
being  authorized  to  purchase,  at  a  low  price,  all  the  corn  they 
find  in  the  possession  of  a  peasant,  above  what  is  necessary 
for  the  subsistence  of  himself  and  his  family,  so  greatly  dis- 
courage the  husbandman,  that  he  sows  no  more  corn  than  is 
barely   necessary   for   the    support   of    his    own   household. 
Hence  the  frequent  scarcity  in  a  country  capable  of  feeding 
its  neighbours. 

Another  abuse  injurious  to  agriculture   is  the  contempt  §  so.    Hus- 
cast  upon  the  husbandman.     The  tradesmen  in  cities  —  evenban"*ry 
the  most  servile  mechanics  —  the  idle  citizens  —  consider  him  °J!fced  °n  ^B 
that  cultivates  the  earth  with  a  disdainful  eye  ;  they  humble  honourable 
and  discourage  him  ;   they  dare  to  despise  a  profession  that  light 
feeds  the  human  race  —  the  natural  employment  of  man.     A 
little  insignificant  haberdasher,  a  tailor,  places  far  beneath 
him  the  beloved  employment  of  the  first  consuls  and  dictators 
of  Rome  !     China  has  wisely  prevented  this  abuse  :  agricul- 
ture is  there  held  in  honour  ;   and  to  preserve  this  happy 
mode  of  thinking,  the  emperor  himself,  followed  by  his  whole 
court,  annually,  on  a  solemn  day,  sets  his  hand  to  the  plough, 
and  sows  a  small  piece  of  land.     Hence  China  is  the  best 
cultivated  country  in  the  world  ;  it  feeds  an  immense  multi- 
tude of  inhabitants  who  at  first  sight  appear  to  the  traveller 
too  numerous  for  the  space  they  occupy. 

The  cultivation  of  the  soil  deserves  the  attention  of  the  §  81.   The 
government,  not  only  on  account  of  the  invaluable  advantages  cultivation 
that  flow  from  it,  but  from  its  being  an  obligation  imposed  by  °  JJJJ  ' 
nature  on  mankind.     The  whole  earth  is  destined  to  feed  its  obligation. 
inhabitants  ;  but  this  it  would  be  incapable  of  doing  if  it  were 
uncultivated.     Every  nation  is  then  obliged  by  the  law  of 
nature  to  cultivate  the  land  that  has  fallen  to  its  share  ;  and 
it  has  no  right  to  enlarge  its  boundaries,  or  have  recourse  to 
the  assistance  of  other  nations,  but  in  proportion  as  the  land 
in  its  possession  is  incapable  of  furnishing  it  with  necessaries. 
Those  nations  (such  as  the  ancient  Germans,  and  some  modern   [  36  ] 
Tartars)  who  inhabit  fertile  countries,  but  disdain  to  culti- 
vate their  lands,  and  choose  rather  to  live  by  plunder,  are 
wanting  to  themselves,  are  injurious  to  all  their  neighbours, 

riduals  who   suffer  injurious  weeds  to    ceedingly   salutary  if  introduced  into 


,eed  on  land  to  the  injury  of  their  neigh-    this  country.  _  C. 
oours,  a  regulation  which  would  be  ex- 


103 


36  OF  THE   CULTIVATION   OP  THE   SOIL. 

BOOK  i.  an(j  deserve  to  be  extirpated  as  savage  and  pernicious  beasts 
CHAP.  vii.  rj^ere  are  others,  who,  to  avoid  labour,  choose  to  live  only 
by  hunting,  and  their  flocks.  This  might,  doubtless,  be 
allowed  in  the  first  ages  of  the  world,  when  the  earth,  without 
cultivation,  produced  more  than  was  sufficient  to  feed  its 
small  number  of  inhabitants.  But  at  present,  when  the  hu- 
man  race  is  so  greatly  multiplied,  it  could  not  subsist  if  all 
nations  were  disposed  to  live  in  that  manner.  Those  who 
still  pursue  this  idle  mode  of  life,  usurp  more  extensive  terri- 
tories than,  with  a  reasonable  share  of  labour,  they  would 
have  occasion  for,  and  have,  therefore,  no  reason  to  complain, 
if  other  nations,  more  industrious  and  too  closely  confined, 
come  to  take  possession  of  a  part  of  those  lands.  Thus, 
though  the  conquest  of  the  civilized  empires  of  Peru  and 
Mexico  was  a  notorious  usurpation,  the  establishment  of  many 
colonies  on  the  continent  of  North  America  might,  on  their 
confining  themselves  within  just  bounds,  be  extremely  lawful. 
The  people  of  those  extensive  tracts  rather  ranged  through 
than  inhabited  them. 

g  82.  Of  The  establishment  of  public  granaries  is  an  excellent  re- 
public gra-  gulation  for  preventing  scarcity.  But  great  care  should  be 
naries.  taken  to  prevent  their  being  managed  with  a  mercantile 
spirit,  and  with  views  of  profit.  This  would  be  establishing  a 
monopoly,  which  would  not  be  the  less  unlawful  for  its  be- 
ing carried  on  by  the  magistrate.  These  granaries  should 
be  filled  in  times  of  the  greatest  plenty,  and  take  off  the 
corn  that  would  lie  on  the  husbandman's  hands,  or  be  car- 
ried in  too  great  quantities  to  foreign  countries :  they  should 
be  opened  when  corn  is  dear,  and  keep  it  at  a  reasonable 
price.  If  in  a  time  of  plenty  they  prevent  that  necessary 
commodity  from  easily  falling  to  a  very  low  price,  this  incon- 
venience is  more  than  compensated  by  the  relief  they  afford 
in  times  of  dearth :  or  rather,  it  is  no  inconvenience  at  all ; 
for,  when  corn  is  sold  extremely  cheap,  the  manufacturer, 
in  order  to  obtain  a  preference,  is  tempted  to  undersell  his 
neighbours,  by  offering  his  goods  at  a  price  which  he  is  after- 
wards obliged  to  raise  (and  this  produces  great  disorders 
in  commerce,  by  putting  it  out  of  its  course) ;  or  he  accus- 
toms himself  to  an  easy  life,  which  he  cannot  support  in 
harder  times.  It  would  be  of  advantage  to  manufactures 
and  to  commerce  to  have  the  subsistence  of  workmen  regu- 
larly kept  at  a  moderate  and  nearly  equal  price.  In  short, 
public  granaries  keep  in  the  state  quantities  of  corn  that 
would  be  sent  abroad  at  too  cheap  a  rate,  and  must  be  pur- 
chased again,  and  brought  back  at  a  very  great  expense  after 
a  bad  harvest,  which  is  a  real  loss  to  the  nation.  These 
establishments,  however,  do  not  hinder  the  corn  trade.  If  the 
country,  one  year  with  another,  produces  more  than  is  sufficient 
for  the  support  of  her  inhabitants,  the  superfluity  will  still  be 
sent  abroad ;  but  it  will  be  sent  at  a  higher  and  fairer  price. 

104 


OF  COMMERCE.  37 

BOOK   I. 
CHAP.   VIII. 

CHAP.  VIII.  r  37  -, 

OF   COMMERCE.  (33) 

IT  is  commerce  that  enables  individuals  and  whole  nations  g  83    Of 
to  procure  those  commodities  which  they  stand  in  need  of,  home  and 
but  cannot  find  at  home.     Commerce  is  divided  into  home  foreign 
and  foreign  trade.  (34)     The  former  is  that  carried  on  in  the1""16' 
state  between  the  several  inhabitants ;  the  latter  is  carried  on 
with  foreign  nations. 

The  home  trade  of  a  nation  is  of  great  use  ;  it  furnishes  all  g  34  utility 
the  citizens  with  the  means  of  procuring  whatever  they  want,  of  the  home 
as  either  necessary,  useful,  or  agreeable ;  it  causes  a  circu- tr&de- 
lation  of  money,  excites  industry,  animates  labour,  and,  by 
affording  subsistence  to  a  great  number  of  people,  contributes 
to  increase  the  population  and  power  of  the  state. 

The  same  reasons  show  the  use  of  foreign  trade,  which  is  g  35.  utility 
moreover  attended  with  these  two  advantages : — 1.  By  trad-  of  foreign 
ing  with  foreigners,  a  nation  procures  such  things  as  neither trade- 
nature  nor  art  can  furnish  in  the  country  it  occupies.  And 
secondly,  if  its  foreign  trade  be  properly  directed,  it  increases 
the  riches  of  the  nation,  and  may  become  the  source  of  wealth 
and  plenty.  Of  this  the  example  of  the  Carthaginians  among 
the  ancients,  and  that  of  the  English  and  Dutch  among  the 
moderns,  afford  remarkable  proofs.  Carthage,  by  her  riches, 
counter-balanced  the  fortune,  courage,  and  greatness  of  Rome. 
Holland  has  amassed  immense  sums  in  her  marshes ;  a  com- 
pany of  her  merchants  possesses  whole  kingdoms  in  the  East, 
and  the  governor  of  Batavia  exercises  command  over  the 
monarchs  of  India.  To  what  a  degree  of  power  and  glory 
has  England  arrived !  Formerly  her  warlike  princes  and  in- 
habitants made  glorious  conquests,  which  they  afterwards  lost 
by  those  reverses  of  fortune  so  frequent  in  war ;  at  present, 
it  is  chiefly  commerce  that  places  in  her  hand  the  balance  of 
Europe. 

Nations  are  obliged  to  cultivate  the  home  trade, — first,  f  86.    Obli- 
because  it  is  clearly  demonstrated  from  the  law  of  nature,  eati.on  to 
that  mankind  ought  mutually  to  assist  each  other,  and,  asfultlvat6  !he 
far  as  in  their  power,  contribute  to  the  perfection  and  hap- 
piness of  their  fellow-creatures :  whence  arises,  after  the  in- 
troduction of  private  property,  the  obligation  to  resign  to 
others,  at  a  fair  price,  those  things  which  they  have  occasion 
for,  and  which  we  do  not  destine  for  our  own  use.     Secondly, 

(33)  See  the  authorities  and  doctrines  carrying  trade,  formerly  one  of  the  prin- 
on  the  advantage  of  commerce  and  com-  cipal    sources    of   British   wealth    and 
mercial  regulations,  1  Chitty's  Commer-  power.     See  authorities,  1  Chitty's  Com- 
cial  Law,  1  to  106.-C.  mercial  Law,  7,  8,  Ae.-C. 

(34)  To  these  are  to  he  added  the 

I*  105 

195165 


CHAP.    V 


OF   COMMERCE. 

BOOKJ.  society  being  established  with  the  view  that  each  may  pro- 
cure whatever  things  are  necessary  to  his  own  perfection  and 
happiness — and  a  home  trade  being  the  means  of  obtaining 
them — the  obligations  to  carry  on  and  improve  this  trade  are 
derived  from  the  very  compact  on  which  the  society  was 
[  38  ]  formed.  Finally,  being  advantageous  to  the  nation,  it  is  a 
duty  the  people  owe  to  themselves,  to  make  this  commerce 
flourish. 

§  87.    Obii-      For  the  same  reason,  drawn'  from  the  welfare  of  the  state, 
gation  to      and  also  to  procure  for  the  citizens  every  thing  they  want,  a 
carry  on       nation  is  obliged  to  promote  and   carry  on  a  foreign  trade. 
S?n        ^  a^  *ke  m°dern  states,  England  is  most  distinguished  in 
this  respect.      The  parliament   have  their  eyes   constantly 
fixed  on  this  important  object ;  they  effectually  protect  the 
navigation  of  the  merchants,  and,  by  considerable  bounties, 
favour  the  exportation  of  superfluous  commodities  and  mer- 
chandises.    In  a  very  sensible  production,*  may  be  seen  the 
valuable   advantages  that  kingdom   has  derived  from  such 
judicious  regulations. 

§  88.  Foun-      Let  us  now  see  what  are  the  laws  of  nature  and  the  rights 
dation  of      of  nations  in  respect  to  the    commerce  they  carry  on  with 
the  laws  of  eacfa  Other.     Men  are  obliged  mutually  to  assist  each  other 
as  much  as  possible,  and  to  contribute  to  the  perfection  and 
happiness  of  their  fellow-creatures  (Prelim.  §  10) ;  (35)  whence 
it  follows,  as  we  have  said  above  (§  86),  that,  after  the  intro- 
duction of  private  property,  it  became  a  duty  to  sell  to  each 
other,  at  a  fair  price,  what  the  possessor  himself  has  no  occa- 
sion for,  and  what  is  necessary  to  others ;  because,  since  that 
introduction  of  private  property,  no  one  can,  by  any  other 
means,  procure  the  different  things  that  may  be  necessary  or 
useful  to  him,  and  calculated  to  render  life  pleasant  and  agree- 
Right  of      able.     Now,  since  right  springs  from  obligation  (Prelim.  §  3), 
buying.        the  obligation  which  we  have  just  established  gives  every  man 
the  right  of  procuring  the  things  he  wants,  by  purchasing 
them  at  a  reasonable  price  from  those  who  have  themselves 
no  occasion  for  them.  (36) 

We  have  also  seen  (Prelim.  §  5)  that  men  could  not  free 
themselves  from  the  authority  of  the  laws  of  nature  by  uniting 
in  civil  society,  and  that  the  whole  nation  remains  equally 

*  Remarks   on  the   Advantages   and  in   concluding    the    commercial   treaty 

Disadvantages    of   France    and    Great  with  France  in  1786,  <fec.,  2  Smith's  W. 

Britain  with  respect  to  Commerce.  of  N.,  226  to  252 ;  Tucker's  Pamphlet 

(35)  See    also    s.  13,  and   Id.   note,  Cui  Bono,  and  1   Chilly's  Commercial 
ante. — C.  Law,  73  to  79.     This  seems  to  be  con- 

(36)  The  moral  obligation  of  a  na-  sidered  by  the  ablest  writers  on  the  law 
tion,  in  time  of  peace,  to  permit  com-  of  nations,  to  be  a  moral  duty  but  of 
mercial   intercourse  with   other   states,  imperfect   obligation,  so   that  in   truth 
and  to  allow  other  states  to  buy  her  each  state  has  a  right,  when  so  disposed, 
surplus  produce,  or  to  sell  or  exchange  to  decline  any  commercial  intercourse 
their    own    surplus    produce,   is    illus-  with  other  states.     Id.  ibid  et  supra. — 
trated  in  Mr.  Pitt's  celebrated  speech  C. 

106 


OF    COMMERCE.  38 

subject  to  those  laws  in  its  national  capacity ;  so  that  the    BOOK  i. 
natural  and  necessary  law  of  nations  is  no  other  than  the  law  CHAP-  Ym- 
of  nature  properly  applied  to  nations   or  sovereign  states 
(Prelim.  §  6) :  from  all  which  it  follows,  that  a  nation  has  a 
right  to  procure,  at  an  equitable  price,  whatever  articles  it 
wants,  by  purchasing  them  of  other  nations  who  have  no  oc- 
casion for  them.     This  is  the  foundation  of  the  right  of  com- 
merce between  different  nations,  and,  in  particular,  of  the 
right  of  buying.  (36) 

We  cannot  apply  the  same  reasoning  to  the  right  of  selling  %  89.  Right 
such  things  as  we  want  to  part  with.     Every  man  and  every  of  selling, 
nation  being  perfectly  at  liberty  to  buy  a  thing  that  is  to  be 
sold,  or  not  to  buy  it,  and  to  buy  it  of  one  rather  than  of 
another — the  law  of  nature  gives  to  no  person  whatsoever  any 
kind  of  right  to  sell  what  belongs  to  him  to  another  who  does 
not  wish  to  buy  it ;  neither  has  any  nation  the  right  of  selling 
her  commodities  or  merchandise  to  a  people  who  are  unwilling 
to  have  them.  [  39  ] 

Every  state  has  consequently  a  right  to  prohibit  the  en-  $  90.    Pro- 
trance  of  foreign  merchandises;  and  the  nations  that  are hibition  of 
affected  by  such  prohibition  have  no  right  to  complain  of  it,  f?re1^  mer" 
as  if  they  had  been  refused  an  office  of  humanity.  (37)     Their 
complaints  would  be  ridiculous,  since  their  only  ground  of 
complaint  would  be,  that  a  profit  is  refused  to  them  by  that 
nation,  who  does  not  choose  they  should  make  it  at  her  ex- 
pense.    It  is,  however,  true,  that  if  a  nation  was  very  certain 
that  the  prohibition  of  her  merchandises  was  not  founded  on 
any  reason  drawn  from  the  welfare  of  the  state  that  prohibited 
them,  she  would  have  cause  to   consider   this   conduct  as  a 
mark  of  ill-will  shown  in  this  instance,  and  to  complain  of  it 
on  that  footing.     But  it  would  be  very  difficult  for  the  ex- 
cluded nation  to  judge  with  certainty  that  the  state  had  no 
solid  or  apparent  reason  for  making  such  a  prohibition. 

By  the  manner  in  which  we  have  shown  a  nation's  right  to  $  91.    Na- 
buy  of  another  what  it  wants,  it  is  easy  to  see  that  this  right ture  of  the 
is  not  one  of  those  called  perfect,  and  that  are  accompanied  "^  of 
with  a  right  to  use  constraint.     Let  us  now  distinctly  explain  uymg' 
the  nature  of  a  right  which  may  give  room  for  disputes  of  a 
very  serious  nature.     You  have  a  right  to  buy  of  others  such 
things  as  you  want,  and  of  which  they  themselves  have  no 
need ;  you  make  application  to  me  :  I  am  not  obliged  to  sell 
them  to  you,  if  I  myself  have  any  occasion  for  them.     In 
virtue  of  the  natural  liberty  which  belongs  to  all  men,  it  is  I 
who  am  to  judge  whether  I  have  occasion  for  them  myself,  or 

(36)  See  note  (36)  preceding  page.  porting  prohibited  goods,  or  permitted 

(37)  When    such   a  prohibition    has  goods  without  paying   imposed  duties, 
been  established,  any  violation  of  it  in  Bird  v.  Appleton,  8    Term    Rep.    562; 
general  subjects  the  ship  and  goods  to  Wigmore   v.   Reed,  5  Term   Rep.  599 ; 
Bcizure  and  confiscation,  as  in  case  of  Holman    v.   Johnson,     Cowp.     344. — C. 
smuggling,  whether  by  exporting  or  im-  {  Church  v.  Hubbart,  2  Cranch,  187. } 

107 


<jy  OF  COMMERCE. 

BOOK  i.  can  conveniently  sell  them  to  you  ;  and  you  have  no  right  to 
CBAP.  Yin.  determine  whether  I  judge  well,  or  ill,  because  you  have  no 
authority  over  me.  If  I,  improperly,  and  without  any  good 
reason,  refuse  to  sell  you  at  a  fair  price  what  you  want,  I 
offend  against  my  duty :  you  may  complain  of  this,  hut  you 
must  submit  to  it :  and  you  cannot  attempt  to  force  me,  with- 
out violating  my  natural  right,  and  doing  me  an  injury.  The 
right  of  buying  the  things  we  want  is  then  only  an  imperfect 
right,  like  that  of  a  poor  man  to  receive  alms  of  the  rich  man ; 
if  the  latter  refuses  to  bestow  it,  the  poor  man  may  justly 
complain :  but  he  has  no  right  to  take  it  by  force. 

If  it  be  asked,  what  a  nation  has  a  right  to  do  in  case  of 
extreme  necessity, — this  question  will  be  answered  in  its  pro- 
per place  in  the  following  book,  Chap.  IX. 

g  92.  Every      Since  then  a  nation  cannot  have  a  natural  right  to  sell  her 
nation  is  to  merchandises  to  another  that  is  unwilling  to  purchase  them, 
fh°itSwiiiW  s^nce  sne  nas  onty  an  imperfect  right  to  buy  what  she  wants 
engaglin     °^  others,  since  it  belongs  only  to  these  last  to  judge  whether 
commerce,    it  be  proper  for  them  to  sell  or  not ;  and  finally,  since  com- 
merce consists  in  mutually  buying  and  selling  all  sorts  of 
commodities,  it  is  evident  that  it  depends  on  the  will  of  any 
nation  to  carry  on  commerce  with  another,  or  to  let  it  alone. 
If  she  be  willing  to  allow  this  to  one,  it  depends  on  the  nation 
to  permit  it  under  such  conditions  as  she  shall  think  proper. 
For  in  permitting  another  nation  to  trade  with  her,  she  grants 
[  40  ]   that  other  a  right ;  and  every  one  is  at  liberty  to  affix  what 
conditions  he  pleases  to  a  right  which  he  grants  of  his  own 
accord.  (37) 

g  93.    How      Men  and  sovereign  states  may,  by  their  promises,  enter 
a  nation  ac-  into  a  perfect  obligation  with  respect  to  each  other,  in  things 
f U Tri  "hfto  wnere  nature  has  imposed  only  an  imperfect  obligation.     A 
a^oreign      nation,  not  having  naturally  a  perfect  right  to  carry  on  a 
trade.          commerce  with  another,  may  procure  it  by  an  agreement  or 
treaty.     This  right  is  then  acquired  only  by  treaties,  and  re- 
lates to  that  branch  of  the  law  of  nations  termed  conventional 
(Prelim.  §  24).     The  treaty  that  gives  the  right  of  commerce, 
is  the  measure  and  rule  of  that  right. 
?  94-  Of  the     A  simple  permission  to  carry  on  commerce  with  a  nation 

mission  of 

commerce.  (3^)  ^itn  resPecfc  to  commercial  nations;  and  they  are  not  even  per- 
intercourse  with  the  colonies  of  a  parent  mitted  to  land  in  the  country,  or  to 
state  of  Europe,  all  the  European  nations  enter  with  their  vessels  within  cannon 
•which  have  formed  settlements  abroad  shot  of  the  shore,  except  only  in  cases 
have  so  appropriated  the  trade  of  those  of  urgent  necessity.  This  has  now  he- 
settlements  to  themselves,  either  in  ex-  come  generally  the  understanding  and 
clusirdy  permitting  their  own  subjects  law  of  nations  as  regards  colonies ;  and 
to  partake  of  it,  or  in  granting  a  mo-  the  ships,  <fec.  violating  the  rule  are 
nopoly  to  trading  companies,  that  the  liable  to  seizure.  Marten's  Law  of 
colonies  themselves  cannot  legally  carry  Nations,  150  to  152  ;  Bird  v.  Appleton, 
on  hardly  any  direct  trade  with  other  8  Term  Rep.  562 ;  1  Chitty's  Commercial 
powers;  consequently  the  commerce  in  Law,  79,  211  to  244,  470,  631. — C. 
those  possessions  is  not  free  to  foreign 
108 


OF   COMMERCE.  40 

gives  no  perfect  right  to  that  commerce.  For  if  I  merely  BOOK  i. 
and  simply  permit  you  to  do  any  thing,  I  do  not  give  you  CHAP'  Tm' 
any  right  to  do  it  afterwards  in  spite  of  me : — you  may  make 
use  of  my  condescension  as  long  as  it  lasts ;  but  nothing  pre- 
vents me  from  changing  my  will.  As  then  every  nation  has 
a  right  to  choose  whether  she  will  or  will  not  trade  with  an- 
other, and  on  what  conditions  she  is  willing  to  do  it  (§  92),  if 
one  nation  has  for  a  time  permitted  another  to  come  and 
trade  in  the  country,  she  is  at  liberty,  whenever  she  thinks 
proper,  to  prohibit  that  commerce — to  restrain  it — to  subject 
it  to  certain  regulations ;  and  the  people  who  before  carried 
it  on  cannot  complain  of  injustice. 

Let  us  only  observe,  that  nations,  as  well  as  individuals, 
are  obliged  to  trade  together  for  the  common  benefit  of  the 
human  race,  because  mankind  stand  in  need  of  each  other's 
assistance  (Prelim.  §§  10,  11,  and  Book  I.  §  88) :  still,  however, 
each  nation  remains  at  liberty  to  consider,  in  particular  cases, 
whether  it  be  convenient  for  her  to  encourage  or  permit  com- 
merce ;  and  as  our  duty  to  ourselves  is  paramount  to  our  duty 
to  others,  if  one  nation  finds  herself  in  such  circumstances 
that  she  thinks  foreign  commerce  dangerous  to  the  state,  she 
may  renounce  and  prohibit  it.  This  the  Chinese  have  done 
for  a  long  time  together.  But,  again,  it  is  only  for  very 
serious  and  important  reasons  that  her  duty  to  herself  should 
dictate  such  a  reserve ;  otherwise,  she  could  not  refuse  to 
comply  with  the  general  duties  of  humanity. 

We  have  seen  what  are  the  rights  that  nations  derive  from  \  95-   De- 
nature with  regard  to  commerce,  and  how  they  may  ac(luireia^g*iat 
others  by  treaties :  let  us  now  examine  whether  they  can  ing  to  con^_ 
found  any  on  long  custom.     To  determine  this  question  in  a  merce  are 
solid  manner,  it  is  necessary  first  to  observe,  that  there  are  subject  to 
rights  which  consist  in  a  simple  power :    they  are  called  in 
Latin,  jura  merce  facultatis,  rights  of  mere  ability.     They 
are  such  in  their  own  nature  that  he  who  possesses  them  may 
use  them  or  not,  as  he  thinks  proper — being  absolutely  free 
from  all  restraint  in  this  respect ;  so  that  the   actions  that 
relate  to  the  exercise  of  these  rights  are  acts  of  mere  free 
will,  that  may  be  done  or  not  done,  according  to  pleasure.  It 
is  manifest  that  rights  of  this  kind  cannot  be  lost  by  pre-   [  41  ] 
scription,  on  account  of  their  not  being  used,  since  prescription 
is  only  founded  on  consent  legitimately  presumed ;  and  that, 
if  I  possess  a  right  which  is  of  such  a  nature  that  I  may  or 
may  not  use  it,  as  I  think  proper,  without  any  person  having 
a  right  to  prescribe  to  me  on  the  subject,  it  cannot  be  pre- 
sumed, from  my  having  long  forborne  to  use  it,  that  I  there- 
fore intend  to  abandon  it.    This  right  is  then  imprescriptible, 
unless  I  have  been  forbidden  or  hindered  from  making  use 

(38)  See  further,  Grotius,  158 ;  Poffendorf,  B.  4,  chap.  5,  s.  10.  p.  168 :  1  Chit. 
Com.  Law,  80,  81.— C. 

E  109 


41  OF   COMMERCE. 

BOOK  i.  of  it,  and  have  obeyed  with  sufficient  marks  of  consent.  Let 
CHAP.  vnr.  ug  SUpp0gej  for  instance,  that  I  am  entirely  at  liberty  to  grind 
my  corn  at  any  mill  I  please,  and  that  during  a  very  con- 
siderable time,  a  century  if  you  please,  I  have  made  use  of 
the  same  mill :  as  I  have  done  in  this  respect  what  I  thought 
proper,  it  is  not  to  be  presumed,  from  this  long-continued  use 
of  the  same  mill,  that  I  meant  to  deprive  myself  of  the  right 
of  grinding  at  any  other ;  and, ^consequently,  my  right  cannot 
be  lost  by  prescription.  But  now  suppose,  that,  on  my  re- 
solving to  make  use  of  another  mill,  the  owner  of  the  former 
opposes  it,  and  announces  to  me  a  prohibition ;  if  I  obey  his 
prohibition  without  necessity,  and  without  opposition,  though 
I  have  it  in  my  power  to  defend  myself,  and  know  my  right, 
this  right  is  lost,  because  my  conduct  aifords  grounds  for  a 
legitimate  presumption  that  I  chose  to  abandon  it. — Let  us 
apply  these  principles. — Since  it  depends  on  the  will  of  each 
nation  to  carry  on  commerce  with  another,  or  not  to  carry  it 
on,  and  to  regulate  the  manner  in  which  it  chooses  to  carry  it 
on  (§  92),  the  right  of  commerce  is  evidently  a  right  of  mere 
ability  (jus  merce  facultatis),  a  simple  power,  and  consequently 
is  imprescriptible.  Thus,  although  two  nations  have  treated 
together,  without  interruption,  during  a  century,  this  long 
usage  does  not  give  any  right  to  either  of  them ;  nor  is  the 
one  obliged  on  this  account  to  suffer  the  other  to  come  and 
sell  its  merchandises,  or  to  buy  others : — they  both  preserve 
the  double  right  of  prohibiting  the  entrance  of  foreign  mer- 
chandise, and  of  selling  their  own  wherever  people  are  willing 
to  buy  them.  Although  the  English  have  from  time  imme- 
morial been  accustomed  to  get  wine  from  Portugal,  they  are 
not  on  that  account  obliged  to  continue  the  trade,  and  have 
not  lost  the  liberty  of  purchasing  their  wines  elsewhere.  (40) 
Although  they  have,  in  the  same  manner,  been  long  accustomed 
to  sell  their  cloth  in  that  kingdom,  they  have,  nevertheless, 
a  right  to  transfer  that  trade  to  any  other  country :  and  the 
Portuguese,  on  their  part,  are  not  obliged  by  this  long  custom, 
either  to  sell  their  wines  to  the  English,  or  to  purchase  their 
cloths.  If  a  nation  desires  any  right  of  commerce  which  shall 
no  longer  depend  on  the  will  of  another,  she  must  acquire  it 
by  treaty.  (40) 

g  96.  Tmpre-  What  lins  been  just  said  may  be  applied  to  the  rights  of 
Bcriptibiiity  commerce  acquired  by  treaties.  If  a  nation  has  by  this  method 
of  rights  procured  the  liberty  of  selling  certain  merchandises  to  another, 

founded  on    r,        ,  ,          v  •    i-     .1          i  i  /• 

treaty.         sne  "oes  n0^  ^ose  ner  rl8nt>  though  a  great  number  of  years 

(40)   The    perpetual     obligation     to  censured  by  some  as  evidently  advan- 
purchase  Port  wines  from   Portugal  in  tageous  to  Portugal  and  disadvantage- 
exchange  for  British  woollen  cloths  was  ous  to  Great  Britain.    2  Smith,  W.  N. 
established  by  the  celebrated  treaty  of  338  to   341 ;    Tucker    on    Trade,  356 ; 
Methuen,  A.  n.  1703  (  so  called  because  and  1  Chitty's   Commercial   Law,  619. 
concluded  by   Sir    P.    Methuen),  with  — C. 
Portugal :    a    treaty    which    has   been 
110 


OF   COMMERCE. 


42 


are  suffered  to  elapse  without  its  being  used ;  because  this     BOOK  i. 
right  is  a  simple  power,  jus  merce  facidtatis,  which  she  is  at  CHAP-  YIU- 
liberty  to  use  or  not,  whenever  she  pleases. 

Certain  circumstances,  however,  may  render  a  different 
decision  necessary,  because  they  imply  a  change  in  the  nature 
of  the  right  in  question.  For  instance,  if  it  appears  evident, 
that  the  nation  granting  this  right  granted  it  only  with  a  view 
of  procuring  a  species  of  merchandise  of  which  she  stands  in 
need,  and  if  the  nation  which  obtained  the  right  of  selling 
neglects  to  furnish  those  merchandises,  and  another  offers  to 
bring  them  regularly,  on  condition  of  having  an  exclusive 
privilege, — it  appears  certain  that  the  privilege  may  be 
granted  to  the  latter.  Thus  the  nation  that  had  the  right  of 
selling  would  lose  it,  because  she  had  not  fulfilled  the  tacit 
condition. 

Commerce  is  a  common  benefit  to  a  nation ;  and  all  her  ?  97.    Of 
members  have  an  equal  right  to  it.     Monopoly,  therefore,  in  mon°Polies> 
general,  is  contrary  to  the  rights  of  the  citizens.     However,  complniesf 
this  rule  has  its  exceptions,  suggested  even  by  the  interest  of  Wuh  exciu- 
the  nation :  and  a  wise  government  may,  in  certain  cases,  sive  privi- 
justly  establish  monopolies.     There  are  commercial  enter-  leses-  (41) 
prises  that  cannot  be  carried  on  without  an   energy  that 


(41)  See  the  advantages  and  dis- 
advantages resulting  from  commercial 
companies  and  foreign  monopolies,  and 
upon  colonization  in  general,  1  Chit- 
ty's  Commercial  Law,  631  to  689 ;  and 
see  some  sensible  observations  on  the 
Impolicy  of  Exclusive  Companies, 
Evans  on  Statutes,  Class  III.  title  In- 
surance, p.  231.  Dr.  Adam  Smith,  in 
his  Wealth  of  Nations,  book  iv.  c.  7, 
p.  379,  &c.  and  Dean  Tucker,  in  his 
Essay  on  Trade,  67  to  71  (but  see  Id. 
40,  41),  admit,  that,  to  induce  specu- 
lating and  enterprising  individuals  to 
embark  their  capitals  in  expensive  un- 
dertakings, probably  generally  bene- 
ficial in  the  result,  but  which  could 
not  be  pursued  by  single  individuals, 
it  may  be  expedient  originally  to  afford 
them  a  monopoly ;  but  that,  after  they 
,  have  acquired  a  liberal  profit,  the  trade 
ought  to  be  thrown  open.  Again, 
•when  a  country  becomes  too  densely 
populated,  and  many  subjects  are  out 
of  employ  and  restless,  then  there 
may  be  another  reason  for  encourag- 
ing the  creation  of  foreign  companies. 
A  celebrated  diplomatist,  and  an  acute 
observer  of  human  nature  (M.  Talley- 
rand), has  justly  said,  that  the  art  of 
putting  men  into  their  proper  places  is, 
perhaps,  the  first  science  of  govern- 
ment ;  but  that  of  finding  the  proper 


place  for  the  discontented  is  assuredly 
the  most  difficult ;  and  the  presenting 
to  their  imagination  in  a  distant  coun- 
try, perspective  views,  on  which  their 
thoughts  and  desires  may  fix  them- 
selves, is  one  of  the  solutions  of  this 
difficulty.  In  the  development  of  the 
motives  which  determined  the  estab- 
lishment of  the  ancient  colonies  we 
easily  remark,  that,  at  the  very  time 
they  were  indispensable,  they  were 
voluntary;  that  they  were  presented 
by  the  governments  as  an  allurement, 
not  as  a  punishment.  Bodies  politic 
ought  to  reserve  to  themselves  the 
means  of  placing  to  advantage,  at  a 
distance  from  their  immediate  seat, 
that  superabundance  of  citizens  who 
from  time  to  time  threaten  their  tran- 
quilliti/.  Thus,  with  new  views  of  life, 
and  the  content  springing  from  the 
full  employment  of  the  aspiring  mind 
of  man,  and  under  the  influence  of  re- 
newed hope,  the  bad,  the  idle,  and  the 
turbulent  may  be  rendered  useful  mem- 
bers of  society.  Our  colonies,  then,  pre- 
sent such  a  field  for  the  promotion  of 
human  happiness,  such  a  scope  for  the 
noblest  purposes  of  philanthropy,  that 
we  cannot  be  led  to  think  their  inte- 
rests will  be  overlooked  by  a  wise  legis- 
lature or  government. — C. 

Ill 


42  OF   COMMERCE. 

BOOK  i.  requires  considerable  funds,  which  surpass  the  ability  of  in- 
CFIAP.  YIII.  dividuals.  There  are  others  that  would  soon  become  ruinous, 
were  they  not  conducted  with  great  prudence,  with  one  regu- 
lar spirit,  and  according  to  well-supported  maxims  and  rules. 
These  branches  of  trade  cannot  be  indiscriminately  carried 
on  by  individuals :  companies  are  therefore  formed,  under  the 
authority  of  government ;  and  these  companies  cannot  subsist 
without  an  exclusive  privilege.  It  is  therefore  advantageous 
to  the  nation  to  grant  them :  hence  have  arisen,  in  different 
countries,  those  powerful  companies  that  carry  on  commerce 
with  the  East.  When  the  subjects  of  the  United  Provinces 
established  themselves  in  the  Indies  on  the  ruin  of  their  ene- 
mies the  Portuguese,  individual  merchants  would  not  have 
dared  to  think  of  such  an  arduous  enterprise ;  and  the  state 
itself,  wholly  taken  up  with  the  defence  of  its  liberty  against 
the  Spaniards,  had  not  the  means  of  attempting  it. 

It  is  also  certain  beyond  all  doubt,  that,  whenever  any  in- 
dividual offers,  on  condition  of  obtaining  an  exclusive  privilege, 
to  establish  a  particular  branch  of  commerce  or  manufacture 
which  the  nation  has  not  the  means  of  carrying  on,  the  sove- 
reign may  grant  him  such  privilege. 

But  whenever  any  branch  of  commerce  may  be  left  open 
to  the  whole  nation,  without  producing  any  inconvenience  or 
being  less  advantageous  to  the  state,  a  restriction  of  that 
commerce  to  a  few  privileged  individuals  is  a  violation  of  the 
rights  of  all  the  other  citizens.  And  even  when  such  a  com- 
merce requires  considerable  expenses  to  maintain  forts,  men 
of  war,  &c.,  this  being  a  national  affair,  the  state  may  defray 
those  expenses,  and,  as  an  encouragement  to  industry,  leave 
the  profits  of  the  trade  to  the  merchants.  This  is  sometimes 
[  43  ]  done  in  England. 

g  98.  Ba-  The  conductor  of  a  nation  ought  to  take  particular  care  to 
lance  of  encourage  the  commerce  that  is  advantageous  to  his  people, 
attention  of  an(^ to  8UPPress  or  laj  restraints  upon  that  which  is  to  their 
government  disadvantage.  (42)  Gold  and  silver  having  become  the  com- 

in  this 

respect  (42)   Tnig  is   a  que8tionabk  policy.  125,  201,  204;   3   Id.   183  j    Malthus, 

It  has  been  laid  down  by  some  of  the  196;   2    Paley,   Mor.   Phil.  400,   402; 

most  eminent  writers  on  political  econo-  3    Hume,  Hist.   403 ;    Sir  J.  Child   on 

my,  that   every  active  interference  of  Trade,  2d  part,  46,  81,  86,  132,  154  to 

the    legislature   with   its    subjects,   by  164 ;   and  Buchanan's  Observations  on 

prohibiting  or  restraining  any  particu-  Smith's   W.  of  N.  2d  ed.  vol.  4,  page 

lar  branch  of  honest  labour,  or  by  en-  156,  157 ;  Introduc.  3  Lord   Sheffield's 

couraging  any  particular  branch  at  the  Strictures   on    Navigation     System,    3 

expense  of  the  others,  whether  in  agri-  Adolph.    163,   and    see    ante,  chap.    6, 

culture  or  commerce,  has  uniformly  re-  and    1    Chitty's     Commercial    Law,    4 

tarded  the  advances  of  public  opulence,  to  7. 

and  that  the  sound  policy  of  a  legislator  But  as  regards  the  encouragement 
is  not  to  impose  restrictions  or  regula-  or  discouragement  of  any  particular 
tions  upon  domestic  industry,  but  ra-  branch  of  trade,  there  is  another  mo- 
ther to  prevent  them  from  being  im-  tive  for  interference  which  powerfully 
posed  by  the  contrivance  or  folly  of  influences,  viz.  the  increase  of  revenue, 
others.  See  2  Smith,  W.  N.  118,  for  whenever  the  luxury  or  other  wish 
112 


PUBLIC   WAYS.  43 

mon  standard  of  the  value  of  all  the  articles  of  commerce,  the    BOOK  T- 
trade  that  brings  into  the  state  a  greater  quantity  of  these  CHAP-  YI"-. 
metals  than  it  carries  out,  is  an  advantageous  trade ;  and,  on 
the  contrary,  that  is  a  ruinous  one,  which  causes  more  gold 
and  silver  to  be  sent  abroad,  than  it  brings  home.     This  is 
what  is  called  the  balance  of  trade.     The  ability  of  those  who 
have  the  direction  of  it,  consists  in  making  that  balance  turn 
in  favour  of  the  nation. 

Of  all  the  measures  that  a  wise  government  may  take  with  2  99 .  Im- 
this  view,  we  shall  only  touch  here  on  import  duties.  When  ^  dutie8- 
the  conductors  of  a  state,  without  absolutely  forcing  trade, 
are  nevertheless  desirous  of  diverting  it  into  other  channels, 
they  lay  such  duties  on  the  merchandises  they  would  discou- 
rage as  will  prevent  their  consumption.  Thus,  French  wines 
are  charged  with  very  high  duties  in  England,  while  the 
duties  on  those  of  Portugal  are  very  moderate, — because 
England  sells  few  of  her  productions  to  France,  while  she  sells 
large  quantities  to  Portugal.  There  is  nothing  in  this  con- 
duct that  is  not  very  wise  and  extremely  just;  and  France 
has  no  reason  to  complain  of  it — every  nation  having  an  un- 
doubted right  to  make  what  conditions  she  thinks  proper, 
with  respect  to  receiving  foreign  merchandises,  and  being  even 
at  liberty  to  refuse  taking  them  at  all. 


CHAP.  IX. 

OF  THE   CARE   OF  THE   PUBLIC  WAYS   OF  COMMUNICATION,        CHAP,  ix. 
AND   THE   RIGHT   OF   TOLL. 

THE  utility  of  highways,  bridges,  canals,  and,  in  a  word,  §  100.    TJti- 
of  all  safe  and  commodious  ways  of  communication,  cannot  Hty  of  hish- 
be  doubted.     They  facilitate  the  trade  between  one  place  and  ^s'^  *" 
another,  and  render  the  conveyance  of  merchandise  less  ex-na 
pensive,  as  well  as  more  certain  and  easy.     The  merchants 
are  enabled  to  sell  at  a  better  price,  and  to  obtain  the  pre- 
ference ;  an  attraction  is  held  out  to  foreigners,  whose  mer- 
chandises are  carried  through  the  country,  and  diffuse  wealth 
in  all  the  places  through  which  they  pass.     France  and  Hol- 
land feel  the  happy  consequences  of  this  from  daily  expe-         . 
rience.  (44) 

of  the  people  introduces  a  foreign,  or  and  export  duties,  bounties  and  draw- 
even  a  domestic  article  to  greater  con-  backs,  which,  since  Vattel  wrote,  have 
sumption,  a  moderate  charge  upon  the  become  extensive  branches  of  law, 
same,  though  in  a  degree  restrictive  upon  highly  important  to  be  studied.  See  an 
the  consumption,  will  in  general  be  a  attempt  of  the  editor  to  arrange  them, 
proper  tax.  Ibid.— C.  in  1  Chitty's  Commercial  Law,  Index, 

(43)  This  is  a  very  slight  allusion  to  titles  Import  and  Export.— C. 
the  very  important  regulation  of  import        (44)  But     although,     since     Vattel 
15                                K2  113 


PUBLIC   WAYS. 


One  of  the  principal  things  that  ought  to  employ  the  at- 
ition  of  the  government  with  respect  to  the  welfare  of  the 


2  ioi.  Duty  public  in  general,  and  of  trade  in  particular,  must  then  relate 
menUn^h'  *°  ^e  highways,  canals,  &c.,  in  which  nothing  ought  to  be 
respect.     *  neglected  to  render  them  safe  and  commodious.     France  is 
one  of  those  states  where  this  duty  to  the  public  is  discharged 
with  the   greatest   attention  and   magnificence.     Numerous 
[  44  ]   patroles  everywhere  watch  over  the  safety  of  travellers :  mag- 
nificent roads,  bridges,  and  canals,  facilitate  the  communica- 
tion between  one  province  and  another : — Lewis  XIV.  joined 
the  two  seas  by  a  work  worthy  of  the  Romans. 

1 102.  its  The  whole  nation  ought,  doubtless,  to  contribute  to  such 
^nthls  useful  undertakings.  When  therefore  the  laying  out  and 
repairing  of  highways,  bridges,  and  canals,  would  be  too 
great  a  burden  on  the  ordinary  revenues  of  the  state,  the 
government  may  oblige  the  people  to  labour  at  them,  or  to 
contribute  to  the  expense.  (45)  The  peasants,  in  some  of  the 
provinces  of  France,  have  been  heard  to  murmur  at  the  labours 
imposed  upon  them  for  the  construction  of  roads :  but  ex- 
perience had  no  sooner  made  them  sensible  of  their  true 
interest,  than  they  blessed  the  authors  of  the  undertaking. 
| 103^  F°un-  The  construction  and  preservation  of  all  these  works  being 
attended  with  great  expense,  the  nation  may  very  justly 
oblige  all  those  to  contribute  to  them,  who  receive  advantage 
from  their  use :  this  is  the  legitimate  origin  of  the  right  of 
toll.  It  is  just  that  a  traveller,  and  especially  a  merchant, 
who  receives  advantage  from  a  bridge,  a  canal,  or  a  road,  in 
his  own  passage,  and  in  the  more  commodious  conveyance  of 

•wrote,  France  greatly  advanced  in  the  ply  of  proper   food  in   return    for  his 

improvement  of  her  roads,  yet  England  labour. — C. 

has  surpassed  all  other  nations  in  the  (46)  As  to  the  right  to  toll,  Ac.,  see 
facilities  of  internal  intercourse  by  new  Grotius,  b.  ii.  chap.  2,  £  14,  p.  154 ; 
canals,  railways,  and  other  improve-  Puffendorff,  book  iii.  chap.  3,  g  6,  p. 
ments  sanctioned  by  the  legislature.  29,  30;  1  Bla.  Com.  287;  1  Chitty's 
With  respect  to  which,  see  the  enact-  Commercial  Law,  103  to  106;  2  Id. 
ments  and  decisions,  2  Chitty's  Commer-  139,  140.  It  has  been  observed,  that 
cial  Law,  127  to  141.— C.  of  all  the  taxes  with  which  the  inhabi- 
(45)  This  position  of  a  government's  tants  of  this  country  are  burdened, 
right  to  oblige  the  people  to  labour  on  there  is  perhaps  none  so  odious  as  the 
the  roads  as  thus  stated,  would  startle  turnpike  duty.  On  the  continent  no 
an  Englishman.  In  England  there  is  such  interruption  in  travelling  is  ex- 
no  such  direct  power.  The  34  Geo.  3,  perienced,  and  tolls  have  been  abolished 
c.  74,  B.  4,  it  is  true,  requires  each  oc-  on  the  northern  side  of  the  metropolis, 
cupier  to  send  his  carts  and  horses,  and  London.  Lord  Byron,  in  his  eulogy 
labourers,  to  work  on  the  roads;  but  upon  English  roads,  humorously  ob- 
then,  if  he  neglect  to  do  so,  he  is  sub-  serves — 

ject  only  to  a  moderate  penalty,  just  ..  what ,  dei.ghtfoi  thing-,  a  rornpike  r»d, 

sufficient  to  enable  the  surveyor  to  hire  so  .mooth, » level,  .uchamodeof  .having 

the  like  assistance   elsewhere:    and  as  The  earth,  M  .carce  the  eagle  in  the  broad 

,.  Air  can  accomplish  with  bis  wide  wing,  waving. 

tO  men,  even    a    pauper    IS    Subject    to  no  Had  .uch  been  cut  in  Phaeton',  time,  Ibe  god 

penalty  for  refusing  to  work,  excepting          Had  told  hi.  »n  to Mtbfjr  hi.  craving 
that,  if  he   do  so,  he  will  not  then  be          ™jl H'^"*,™^^ °*£,?*  ** "" ' 
entitled  to  parochial  relief.     If  he  work,  cut.  x.  7&— c. 

he  is  entitled  to  pay  in  money,  or  sup- 
114 


PUBLIC   WAYS.  44 

his  merchandise,  should  help  to  defray  the  expense  of  these    BOOK  i. 
useful  establishments,  by  a  moderate  contribution  :  and  if  the  _CHAP-  "• 
state  thinks  proper  to  exempt  the  citizens  from  paying  it,  she 
is  under  no  obligation  to  gratify  strangers  in  this  particular. 

But  a  law  so  just  in  its  origin  frequently  degenerates  into  gi<)4.  Abuse 
great  abuses.     There  are  countries  where  no  care  is  taken of  this  right- 
of  the  highways,  and  where  nevertheless  considerable  tolls  ^ 
are  exacted.     A  lord  of  a  manor,  who  happens  to  possess  a 
stripe  of  land  terminating  on  a  river,  there  establishes  a  toll, 
though  he  is  not  at  a  farthing's  expense  in  keeping  up  the 
navigation  of  the  river,  and  rendering  it  convenient.     This 
is  a  manifest  extortion,  and  an  infringement  of  the  natural 
rights  of  mankind.     For  the  division  of  lands,  and  their  be- 
coming private  property,  could  never  deprive  any  man  of  the 
right  of  passage,  when  not  the  least  injury  is  done  to  the 
person  through  whose  territory  he  passes.     Every  man  in- 
herits this  right  from  nature,  and  cannot  justly  be  forced  to 
purchase  it.  (47) 

But  the  arbitrary  or  customary  law  of  nations  at  present 
tolerates  this  abuse,  while  it  is  not  carried  to  such  an  excess 
as  to  destroy  commerce.  People  do  not,  however,  submit 
without  difficulty,  except  in  the  case  of  those  tolls  which  are 
established  by  ancient  usage :  and  the  imposition  of  new  ones 
is  often  a  source  of  disputes.  The  Swiss  formerly  made  war 
on  the  Dukes  of  Milan,  on  account  of  some  oppressions  of 
this  nature.  This  right  of  tolls  is  also  further  abused,  when 
the  passenger  is  obliged  to  contribute  too  much,  and  what 
bears  no  proportion  to  the  expense  of  preserving  these  public 
passages.  (48) 

At  present,  to  avoid  all  difficulty  and  oppression,  nations 
settle  these  points  by  treaties. 

(47)  This  position  requires  explana-  1  Burr.  292.      In  the  absence  of  such 

tion  and  qualification.     As   respects  a  custom  or  prescription,  no  right  to  ap- 

public    navigable   river,  every  part  of  proach  a  river    over   private    grounds 

the  navigable  stream  must  ever  remain  exists.     Parthericke  v.  Mason,  2  Chitty's 

free  and  open  from  its  communication  Rep.  658 ;    Wyatt  v.  Thompson,  1  Esp. 

with  the  sea  to   its  extreme  navigable  Rep.  252.     {  Ohess  v.  Manown,  3  Watts, 

point;    but  the    absolute   right   to    ap-  Rep.  219;   Cooper  v.  Smith,  9  Serg.  A 

proach    it  on   each    side,  can    only  be  Rawle,  26. }     So,  if  a  private  individual 

by  public   and   general  ways.     Conse-  make  and  repair  a  bridge  over  a  river, 

quently,  if  an  individual  have  land  ad-  he  may  insist  upon  any  person  using 

joining    a   river,    he    may   reasonably  it  paying  him  a  toll,  as  in  the  instance 

refuse  permission  to  any  person  to  go  of    Putney    and    Fulham    bridge.     In          « 

over  it  to  approach  the   river,  and  de-  these  cases  the   demand  of  an  exorbi- 

mand   any  sum   he   thinks    fit  for  the  tant   toll   may    be   illiberal,  but  is  no 

permission,   unless   there    be    a  public  more   illegal  than   a   nation's  refusing 

way    over  it      Nor    have    the    public  to  sell    its    superfluous   produce,   or  to 

any   right  at  common   law  to  tow  on  admit  free  passage  through  its  country, 

the    banks    of    an    ancient    navigable  The  right  to    pass   at  a  moderate  toll 

river;    Ball  v.  Herbert,  3   Term   Rep.  is   a  moral   but  imperfect  right,  ante, 

253 ;    though  it  may  exist   by  custom  g  91. C. 

or  prescription.     Pierce  v.  Fauconberge,        (48)  See  n.  47,  ante. 

115 


45  OF   MONEY  AND   EXCHANGE. 


BOOK   I. 
CHAP.   X. 


CHAP.  X. 

OF  MONEY  AND   EXCHANGE.  (49) 

§  105.   Es-       IN  the  first  ages,  after  the  introduction  of  private  property, 
tabiishment  pe0ple  exchanged  their  superfluous  commodities  and  effects 
oney'    for  those  they  wanted.     Afterwards  gold  and  silver  hecame 
the  common  standard  of  the  value  of  all  things :  and  to  pre- 
vent the  people  from  being  cheated,  the  mode  was  introduced 
of  stamping  pieces  of  gold  and  silver  in  the  name  of  the  state, 
with  the  figure  of  the  prince,  or  some  other  impression,  as  the 
seal  and  pledge  of  their  value.     This  institution  is  of  great 
use  and  infinite  convenience :  it  is  easy  to  see  how  much  it 
facilitates  commerce. — Nations  or  sovereigns  cannot  therefore 
bestow  too  much  attention  on  an  affair  of  such  importance, 
g  106.  Duty      The  impression  on  the  coin  becoming  the  seal  of  its  stand- 
»f  the  nation  ar(j  an(j  ^jgh^  a  moment's  reflection  will  convince  us  that 
withTelpect tne  coinage  of  money  ought  not  to  be  left  indiscriminately 
to  the  coin,  free  to  every  individual ;  for,  by  that  means,  frauds  would 
become  too    common — the  coin  would  soon  lose  the  public 
confidence ;  and  this  would  destroy  a  most  useful  institution. 
Hence  money  is  coined  by  the  authority  and  in  the  name  of 
the  state  or  prince,  who  are  its  surety ;  they  ought,  therefore, 
to  have  a  quantity  of  it  coined  sufficient  to  answer  the  neces- 
sities of  the  country,  and  to  take  care  that  it  be  good,  that  is 
to  say,  that  its  intrinsic  value  bear  a  just  proportion  to  its 
extrinsic  or  numerary  value. 

It  is  true,  that,  in  a  pressing  necessity,  the  state  would  have 
a  right  to  order  the  citizens  to  receive  the  coin  at  a  price 
superior  to  its  real  value :  but  as  foreigners  will  not  receive 
it  at  that  price,  the  nation  gains  nothing  by  this  proceeding ; 
it  is  only  a  temporary  palliative  for  the  evil,  without  effecting 
a  radical  cure.  This  excess  of  value,  added  in  an  arbitrary 
manner  to  the  coin,  is  a  real  debt  which  the  sovereign  con- 
tracts with  individuals :  and,  in  strict  justice,  this  crisis  of 
affairs  being  over,  that  money  ought  to  be  called  in  at  the 
expense  of  the  state,  and  paid  for  in  other  specie,  according  to 
the  natural  standard :  otherwise,  this  kind  of  burden,  laid  on 
in  the  hour.£f  necessity,  would  fall  solely  on  those  who  re- 
ceived this  arbitrary  money  in  payment,  which  would  be  unjust. 
Besides,  experience  has  shown  that  such  a  resource  is  destruc- 
tive to  trade,  by  destroying  the  confidence  both  of  foreigners 
and  citizens — raising  in  proportion  the  price  of  every  thing — 

(49)  The  modern  law  of  nations,  and  Id.  84  to   120 ;  1  Chitty's  Commercial 

the   municipal   law  of  England,  as   to  Law,  583 ;  2  Id.  179  to  187,  and  statutes 

coin,  bullion,  and  money,  will  be  found  and  decisions  there  collected. — C. 
collected  in  1  Bla.  Com.  276  to  280;  4 
116 


OF   MONEY  AND   EXCHANGE. 


45 


and  inducing  every  one  to  lock  up  or  send  abroad  the  good    BOOK  r. 

old  specie ;  whereby  a  temporary  stop  is  put  to  the  circulation    CHAP'  *• 

of  money.     So  that  it  is  the  duty  of  every  nation  and  of  every 

sovereign  to  abstain,  as  much  as  possible,  from  so  dangerous 

an  experiment,  and  rather  to  have  recourse  to  extraordinary   [  46  ] 

taxes  and  contributions  to  support  the  pressing  exigencies  of 

the  state.* 

Since  the  state  is  surety  for  the  goodness  of  the  money  g  107.  Their 
and  its  currency,  the  public  authority  alone  has  the  right  of  rights  in  this 
coining  it.     Those  who  counterfeit  it,  violate  the  rights  of  respect, 
the  sovereign,  whether  they  make  it  of  the  same  standard 
and  value  or  not.     These  are  called  false-coiners,  and  their 
crime  is  justly  considered  as  one  of  the  most  heinous  nature. 
For  if  they  coin  base  money,  they  rob  both  the  public  and 
the  prince ;  and  if  they  coin  good,  they  usurp  the  preroga- 
tive of  the  sovereign.     They  will  never  be  inclined  to  coin 
good  money  unless  there  be  a  profit  on  the  coinage :  and  in 
this  case  they  rob  the  state  of  a  profit  which  exclusively  be- 


*  In  Boizard's  Treatise  on  Coin,  we 
find  the  following  observations :  "  It  is 
worthy  of  remark,  that,  when  our  kings 
debased  the  coin,  they  kept  the  circum- 
stance a  secret  from  the  people  : — wit- 
ness the  ordinance  of  Philip  de  Valois 
in  1350,  by  which  he  ordered  Tournois 
Doubles  to  be  coined  2d.  5$gr.  fine, 
which  was,  in  fact,  a  debasement  of 
the  coin.  In  that  ordinance,  address- 
ing the  officers  of  the  mint,  he  says — 
'  Upon  the  oath  by  which  you  are  bound 
to  the  king,  keep  this  affair  as  secret  as 
you  possibly  can,  that  neither  the  bank- 
ers nor  others  may,  by  your  means,  ac- 
quire any  knowledge  of  it ;  for  if,  through 
you,  it  comes  to  be  known,  you  shall  be 
punished  for  the  offence  in  such  man- 
ner as  shall  serve  as  an  example  to 
others.'" — The  same  author  quotes 
other  similar  ordinances  of  the  same 
king,  and  one  issued  by  the  Dauphin, 
who  governed  the  kingdom  as  regent 
during  the  captivity  of  King  John,  dated 
June  27,  1360,  by  virtue  of  which  the 
mint-masters,  directing  the  officers  en- 
gaged in  the  coinage  to  coin  white 
Denicrs  Id.  12gr.  fine,  at  the  same  time 
expressly  command  them  to  keep  this 
order  secret,  and,  "if  any  persons  should 
make  inquiry  respecting  their  standard, 
to  maintain  that  they  were  2d.  fine." 
Chap.  xxix. 

The  kings  [of  France]  had  recourse 
to  this  strange  expedient  in  cases  of 
urgent  necessity ;  but  they  saw  its  in- 
justice.— The  same  author,  speaking 
of  the  debasement  of  coin,  or  the  va- 


rious modes  of  reducing  its  intrinsic 
value,  says — "These  expedients  are 
but  rarely  resorted  to,  because  they  give 
occasion  to  the  exportation  or  melting 
down  of  the  good  specie,  and  to  the  in- 
troduction and  circulation  of  foreign 
coin — raise  the  price  of  every  thing- 
impoverish  individuals — diminish  the 
revenue,  which  is  paid  in  specie  of  in- 
ferior value — and  sometimes  put  a  total 
stop  to  commerce.  This  truth  has  been 
so  well  understood  in  all  ages,  that 
those  princes  who  had  recourse  to  one 
or  other  of  these  modes  of  debasing  the 
coin  in  difficult  times,  ceased  to  prac- 
tise it  the  moment  the  necessity  ceased 
to  exist."  We  have,  on  this  subject,  an 
ordinance  of  Philip  the  Fair,  issued  in 
May,  1295,  which  announces,  that, 
"The  king  having  reduced  the  coin 
both  in  fineness  and  weight,  and  ex- 
pecting to  be  obliged  to  make  a  further 
reduction  in  order  to  retrieve  his  affairs, 
— but  knowing  himself  to  be,  in  con- 
science, responsible  for  the  injury 
caused  to  the  state  by  such  reduction, 
— pledges  himself  to  the  people  of  his 
kingdom,  by  solemn  charter,  that,  as 
soon  as  his  affairs  are  retrieved,  he  will 
restore  the  coin  to  its  proper  standard 
and  value,  at  his  own  private  cost  and 
expense,  and  will  himself  bear  all  the 
loss  and  waste.  And,  in  addition  to  this 
engagement,  Dame  Joan,  Queen  of 
France  and  Navarre,  pledges  her  reve- 
nues and  dower  for  the  same  purpose.* 
Note,  edit  A.  D.  1797. 

117 


46 


OF  MONEY   AND    EXCHANGE. 


BOOK  r.  longs  to  it.  In  both  cases  they  do  an  injury  to  the  sove- 
CHAP'  *'  reign ;  for  the  public  faith  being  surety  for  the  money,  the 
sovereign  alone  has  a  right  to  have  it  coined.  For  this  rea- 
son the  right  of  coming  is  placed  among  the  prerogatives  of 
majesty,  and  Bodinus  relates,*  that  Sigismund  Augustus, 
king  of  Poland,  having  granted  this  privilege  to  the  duke 
of  Prussia,  in  the  year  1543,  the  states  of  the  country  passc>d 
a  decree  in  which  it  was  asserted  that  the  king  could  not 
grant  that  privilege,  it  being  inseparable  from  the  crown. 
[  47  ]  The  same  author  observes,  that,  although  many  lords  and 
bishops  of  France  had  formerly  the  privilege  of  coining  mo- 
ney, it  was  still  considered  as  coined  by  the  king's  authority : 
and  the  kings  of  France  at  last  withdrew  all  those  privileges, 
on  account  of  their  being  often  abused. 

§  108.  How     From  the  principles  just  laid  down,  it  is  easy  to  conclude, 
one  nation    that  if  one  nation  counterfeits  the  money  of  another,  or  if 
she  allows  and  protects  false-coiners  who  presume  to  do  it, 
she  does  that  nation  an  injury.     But  commonly  criminals 
of  this  class  find  no  protection  anywhere — all  princes  being 
equally  interested  in  exterminating  them.  (50) 
g  109.    Of        There  is  another  custom  more  modern,  and  of  no  less  use 
exchange,    to  commerce  than  the  establishment  of  coin,  namely  exchange, 
and  the  laws  or  tne  traffic  Of  bankers,  by  means  of  which  a  merchant  re- 
merce."       m^s  imm6nse  sums  from  one  end  of  the  world  to  the  other, 
at  a  very  trifling  expense,  and,  if  he  pleases,  without  risk. 
For  the  same  reason  that  sovereigns  are  obliged  to  protect 
commerce,  they  are  obliged  to  support  this  custom,  by  good 
laws,  in  which  every  merchant,  whether  citizen  or  foreigner, 
may  find  security.     In  general,  it  is  equally  the  interest  and 
the  duty  of  every  nation  to  have  wise  and  equitable  commer- 
cial laws  established  in  the  country. 


may  injure 
another  in 
the  article 
of  coin. 


*  In  his  Republic,  book  i.  chap.  x. 

(50)  This  is  a  sound  principle,  which 
ought  to  be  extended  so  as  to  deny  ef- 
fect to  any  fraud  upon  a  foreign  nation 
or  its  subjects.  But  in  England  a  nar- 
row and  immoral  policy  prevails  of  not 
noticing  frauds  upon  the  revenue  of  a 
foreign  state.  Roach  v.  Edie,  6  Term 
Rep.  425 ;  Boucher  v.  Lawrence,  R.  T. 
Hardw.  198  ;  Holman  v.  Johnson,  Cowp. 
343;  James  v.  Catherwood,  3  Dowl.  A 
Ryl.  190.  {  Cambioso'g  Ex.  v.  Maffet's 
Assignees,  2  Wash.  C.  C.  Rep.  99.}  And 
so  far  has  this  narrow  doctrine  been 
carried,  in  disgrace  of  this  country,  that, 
in  Smith  v.  Marconnay,  2  Peake's  Rep. 


81,  it  was  held,  that  the  maker  of 
paper  in  England,  knowingly  made  by 
him  for  the  purpose  of  forging  assignats 
upon  the  same,  to  be  exported  to  France 
in  order  to  commit  frauds  there  on 
other  persons,  might  recover  damages 
for  not  accepting  such  paper  pursuant 
to  contract.  So  a  master  of  an  English 
ship  was  even  allowed  to  recover  sal- 
vage for  bringing  homo  his  captured 
vessel,  by  deceptively  inducing  the  ene- 
my to  release  the  vessel  on  his  giving  a 
ransom  bill,  payment  of  which  he  took 
care  to  countermand  in  London.  2  Dod- 
son's  R.  74. 


118 


A   GOOD   GOVERNMENT,  ETC.  47 


BOOK   I. 
CHAP.    XI. 


CHAP.  XI. 

SECOND   OBJECT   OF  A   GOOD   GOVERNMENT,  —  TO   PROCURE   THE 
TRUE   HAPPINESS   OF   THE   NATION. 

LET  us  continue  to  lay  open  the  principal  objects  of  a  good  §  no.  A  n»- 
government.     What  we  have  said  in  the  five  preceding  chap-  tion  ous^ 
ters  relates  to  the  care  of  providing  for  the  necessities  of  the  aft^teown 
people,  and  procuring  plenty  in  the  state  :  this  is  a  point  of  happiness. 
necessity  ;  but  it  is  not  sufficient  for  the  happiness  of  a  na- 
tion.    Experience  shows  that  a  people  may  be  unhappy  in 
the  midst  of  all  earthly  enjoyments,  and  in  the  possession  of 
the  greatest  riches.     Whatever  may  enable  mankind  to  enjoy 
a  true  and  solid  felicity,  is  a  second  object  that  deserves  the 
most  serious  attention  of  the  government.     Happiness  is  the 
point  where  centre  all  those  duties  which  individuals  and  na- 
tions owe  to  themselves  ;  and  this  is  the  great  end  of  the  law 
of  nature.     The  desire  of  happiness  is  the  powerful  spring 
that  puts  man  in  motion  :  felicity  is  the  end  they  all  have  in 
view,  and  it  ought  to  be  the  grand  object  of  the  public  will 
(Prelim.  §  5).     It  is  then  the  duty  of  those  who  form  this 
public  will,  or  of  those  who  represent  it  —  the  rulers  of  the 
nation  —  to  labour  for  the  happiness  of  the  people,  to  watch 
continually  over  it,  and  to  promote  it  to  the  utmost  of  their 
power. 

To  succeed  in  this,  it  is  necessary  to  instruct  the  people  to  ?  m.  in- 
seek  felicity  where  it  is  to  be  found  ;  that  is,  in  their  own  struction- 
perfection,  —  and  to  teach  them  the  means  of  obtaining  it. 
The  sovereign  cannot,  then,  take  too  much  pains  in  instruct-  r  43  i 
ing  and  enlightening  his  people,  and  in  forming  them  to  use- 
ful knowledge  and  wise  discipline.  Let  us  leave  a  hatred  of 
the  sciences  to  the  despotic  tyrants  of  the  east:  they  are 
afraid  of  having  their  people  instructed,  because  they  choose 
to  rule  over  slaves.  But  though  they  are  obeyed  with  the 
most  abject  submission,  they  frequently  experience  the  effects 
of  disobedience  and  revolt.  A  just  and  wise  prince  feels  no 
apprehensions  from  the  light  of  knowledge  :  he  knows  that  it 
is  ever  advantageous  to  a  good  government.  If  men  of  learn- 
ing know  that  liberty  is  the  natural  inheritance  of  mankind  ; 
on  the  other  hand  they  are  more  fully  sensible  than  their 
neighbours,  how  necessary  it  is,  for  their  own  advantage,  that 
this  liberty  should  be  subject  to  a  lawful  authority:  —  in- 
capable of  being  slaves,  they  are  faithful  subjects. 

The  first  impressions  made  on  the  mind  are  of  the  utmost  g  112.  Edu- 
importance  for  the  remainder  of  Hfe.     In  the  tender  years  cation  of 
of  infancy  and  youth,  the  human  mind  and  heart  easily  re-  youth' 
ceive  the  seeds  of  good  or  evil.     Hence  the  education  of 
youth  is  one  of  the  most  important  affairs  that  deserve  the 

119 


48  SECOND   OBJECT   OF 


BOOK 
CHAP.    XI. 


x-  attention  of  the  government.  It  ought  not  to  be  entirely 
left  to  fathers.  The  most  certain  way  of  forming  good  citi- 
zens is  to  found  good  establishments  for  public  education,  to 
provide  them  with  able  masters — direct  them  with  prudence 
— and  pursue  such  mild  and  suitable  measures,  that  the  citi- 
zens will  not  neglect  to  take  advantage  of  them.  How  ad- 
mirable was  the  education  of  the  Romans,  in  the  flourishing 
ages  of  their  republic,  and  how<  admirably  was  it  calculated  to 
form  great  men  !  The  young  men  put  themselves  under  the 
patronage  of  some  illustrious  person;  they  frequented  his 
house,  accompanied  him  wherever  he  went,  and  equally  im- 
proved by  his  instructions  and  example :  their  very  sports 
and  amusements  were  exercises  proper  to  form  soldiers.  The 
same  practice  prevailed  at  Sparta ;  and  this  was  one  of  the 
wisest  institutions  of  the  incomparable  Lycurgus.  That  legis- 
lator and  philosopher  entered  into  the  most  minute  details 
respecting  the  education  of  youth,*  being  persuaded  that  on 
that  depended  the  prosperity  and  glory  of  his  republic. 
§  113.  Arts  "Who  can  doubt  that  the  sovereign — the  whole  nation — 
m  sciences.  OUgj^  ^Q  encourage  the  arts  and  sciences  ?  To  say  nothing  of 
the  many  useful  inventions  that  strike  the  eye  of  every  be- 
holder,— literature  and  the  polite  arts  enlighten  the  mind 
and  soften  the  manners  :  and  if  study  does  not  always  inspire 
the  love  of  virtue,  it  is  because  it  sometimes,  and  even  too 
often,  unhappily  meets  with  an  incorrigibly  vicious  heart. 
The  nation  and  its  conductors  ought  then  to  protect  men  of 
learning  and  great  artists,  and  to  call  forth  talents  by  honours 
and  rewards.  Let  the  friends  of  barbarism  declaim  against 
the  sciences  and  polite  arts ; — let  us,  without  deigning  to  an- 
[  49  ]  swer  their  vain  reasonings,  content  ourselves  with  appealing 
to  experience.  Let  us  compare  England,  France,  Holland, 
and  several  towns  of  Switzerland  and  Germany,  to  the  many 
regions  that  lie  buried  in  ignorance,  and  see  where  we  can 
find  the  greater  number  of  honest  men  and  good  citizens.  It 
would  be  a  gross  error  to  oppose  against  us  the  example  of 
Sparta,  and  that  of  ancient  Rome.  They,  it  is  true,  neglected 
curious  speculations,  and  those  .branches  of  knowledge  and  art 
that  were  purely  subservient  to  pleasure  and  amusement ;  but 
the  solid  and  practical  sciences — morality,  jurisprudence, 
politics,  and  war — were  cultivated  by  them,  especially  by  the 
Romans,  with  a  degree  of  attention  superior  to  what  we  be- 
stow upon  them. 

In  the  present  age,  the  utility  of  literature  and  the  polite 
arts  is  pretty  generally  acknowledged,  as  is  likewise  the  neces- 
sity of  encouraging  them.  The  immortal  Peter  I.  thought 
that  without  their  assistance  he  could  not  entirely  civilize 
Russia,  and  render  it  flourishing.  In  England,  learning  and 
abilities  lead  to  honour  and  riches.  Newton  was  honoured, 


*  See  Xenophon,  Lacedcemon.  RespuUica. 
120 


A   GOOD   GOVERNMENT,    ETC.  49 

protected,  and  rewarded  while  living,  and  after  his  death,  his  BOOK  *• 
tomb  was  placed  among  those  of  kings.  France  also,  in  this  CHAP-  "• 
respect,  deserves  particular  praise ;  to  the  munificence  of  her 
kings  she  is  indebted  for  several  establishments  that  are  no 
less  useful  than  glorious.  The  Royal  Academy  of  Sciences 
diffuses  on  every  side  the  light  of  knowledge  and  the  desire 
of  instruction.  Louis  XV.  furnished  the  means  of  sending 
to  search,  under  the  equator  and  the  polar  circle,  for  the  proof 
of  an  important  truth ;  and  we  at  present  know  what  was  be- 
fore only  believed  on  the  strength  of  Newton's  calculations. 
Happy  will  that  kingdom  be,  if  the  too  general  taste  of  the 
age  does  not  make  the  people  neglect  solid  knowledge,  to  give 
themselves  up  to  that  which  is  merely  amusing,  and  if  those 
who  fear  the  light  do  not  succeed  in  extinguishing  the  blaze  of 
science ! 

I  speak  of  the  freedom  of  philosophical  discussion,  which  g  114.  Free- 
is  the  soul  of  the  republic  of  letters.  What  can  genius  pro-  dom  of  phi- 
duce,  when  trammelled  by  fear  ?  Can  the  greatest  man  that  ^s°Phl_cal 
ever  lived  contribute  much  towards  enlightening  the  minds  of 
his  fellow-citizens,  if  he  finds  himself  constantly  exposed  to 
the  cavils  of  captious  and  ignorant  bigots — if  he  is  obliged  to 
be  continually  on  his  guard,  to  avoid  being  accused  by  innu- 
endo-mongers of  indirectly  attacking  the  received  opinions  ? 
I  know  that  liberty  has  its  proper  bounds — that  a  wise  govern- 
ment  ought  to  have  an  eye  to  the  press,  and  not  to  allow  the 
publication  of  scandalous  productions,  which  attack  morality, 
government,  or  the  established  religion.  But  yet,  great  care 
should  be  taken  not  to  extinguish  a  light  that  may  afford  the 
state  the  most  valuable  advantages.  Few  men  know  how  to 
keep  a  just  medium ;  and  the  office  of  literary  censor  ought 
to  be  intrusted  to  none  but  those  who  are  at  once  both  prudent 
and  enlightened.  Why  should  they  search  in  a  book  for  what 
the  author  does  not  appear  to  have  intended  to  put  into  it? 
And  when  a  writer's  thoughts  and  discourses  are  wholly  em-  [  50  ] 
ployed  on  philosophy,  ought  a  malicious  adversary  to  be  list- 
ened to,  who  would  set  him  at  variance  with  religion  ?  So 
far  from  disturbing  a  philosopher  on  account  of  his  opinions, 
the  magistrate  ought  to  chastise  those  who  publicly  charge 
him  with  impiety,  when  in  his  Avritings  he  shows  respect  to  the 
religion  of  the  state.  The  Romans  seem  to  have  been  formed 
to  give  examples  to  the  universe.  That  wise  people  carefully 
supported  the  worship  and  religious  ceremonies  established  by 
law,  and  left  the  field  open  to  the  speculations  of  philosophers. 
Cicero—a  senator,  aconsul,  an  augur — ridicules  superstition, 
attacks  it,  and  demolishes  it  in  his  philosophical  writings ;  and, 
in  so  doing,  he  thought  he  was  only  promoting  his  own  hap- 
piness and  that  of  his  fellow-citizens :  but  he  observes  that 
"to  destroy  superstition  is  not  destroying  religion ;  for,"  says 
he,  'Jit  becomes  a  wise  man  to  respect  the  institutions  and 
religious  ceremonies  of  his  ancestors :  and  it  is  sufficient  to 

16  L  121 


SECOND    OBJECT   OF 


contemplate  the  beauty  of  the  world,  and  the  admirable  order 
e  ceiest;ia]i  bodies,  in  order  to  be  convinced  of  the  exist- 
ence of  an  eternal  and  all-perfect  being,  who  is  entitled  to  the 
veneration  of  the  human  race."*  And  in  his  Dialogues  on 
the  Nature  of  the  Gods,  he  introduces  Cotta  the  academic, 
who  was  high-priest,  attacking  with  great  freedom  the  opinions 
of  the  stoics,  and  declaring  that  he  should  always  be  ready  to 
defend  the  established  religion^  from  which  he  saw  the  republic 
had  derived  great  advantages  ;  that  neither  the  learned  nor 
the  ignorant  should  make  him  abandon  it  :  he  then  says  to  his 
adversary,  "  These  are  my  thoughts,  both  as  pontiff  and  as 
Cotta.  But  do  you,  as  a  philosopher,  bring  me  over  to  your 
opinion  by  the  strength  of  your  arguments  :  for  a  philosopher 
ought  to  prove  to  me  the  truth  of  the  religion  he  would  have 
me  embrace,  whereas  I  ought  in  this  respect  to  believe  our 
forefathers,  even  without  proof,  "f 

Let  us  add  experience  to  these  examples  and  authorities. 
Never  did  a  philosopher  occasion  disturbances  in  the  state, 
or  in  religion,  by  his  opinions  :  they  would  make  no  noise 
among  the  people,  nor  ever  offend  the  weak,  if  malice  or  in- 
temperate zeal  did  not  take  pains  to  discover  a  pretended 
venom  lurking  in  them.  It  is  by  him  who  endeavours  to  place 
[  51  ]  the  opinions  of  a  great  man  in  opposition  to  the  doctrines  and 
worship  established  by  law,  that  the  state  is  disturbed,  and 
religion  brought  into  danger. 

g  115.  Lore     To  instruct  the  nation  is  not  sufficient  :  —  in  order  to  conduct 

of  virtue,     ft  to  happiness,  it  is  still  more  necessary  to  inspire  the  people 

rence  of"*"  w^  *ne  l°ve  °f  virtue,  and  the  abhorrence  of  vice.     Those 

vice,  to  be    wno  are  deeply  versed  in  the  study  of  morality  are  convinced 

excited.        that  virtue  is  the  true  and  only  path  that  leads  to  happiness  ; 

so  that  its  maxims  are  but  the  art  of  living  happily;  and  he 

must  be  very  ignorant  of  politics,  who  does  not  perceive  how 

much  more  capable  a  virtuous  nation  will  be,  than  any  other, 

of  forming  a  state  that  shall  be  at  once  happy,  tranquil, 

flourishing,  solid,  respected  by  its  neighbours,  and  formidable 

to  its  enemies.     The  interest  of  the  prince  must  then  concur 


*  Nam,  ut  vere  loquamur,  superstitio 
fusa  per  gentes  oppressit  omnium  fere 
animos,  atque  omnium  imbecillitatom 
occupavit.  .  .  .  multum  enim  et  nobismet 
ipsis  ct  nostris  profuturi  videbamur,  si 
earn  funditus  sustulissemus.  Nee  vero 
(id  enim  diligenter  intelligi  volo)  su- 
peretitione  tollenda  religio  tollitur. 
Nam  et  majorum  institute  tueri,  sacris 
caoremoniisquo  rctinendis,  sapientis  est: 
et  esse  praestantem  aliquam  acternamque 
naturam,  et  earn  suspiciendam,  admi- 
randamque  hominum  generi,pulchritudo 
mundi,  ordoque  coelestium  cogit  confi- 
teri.  De  Divinatione,  lib.  li. 
122 


f  Harum  ego  rcligionem  imllam  un- 
quam  contemnendam  putavi :  mihique 
ita  persuasi,  Romulum  auspiciis,  Nu- 
mam  sacris  constitutis,  fundamenta 


jecisse  nostrae  civi 
profecto  sine  sum 
rum  immortalium  t 


sentiat.      Fae     nui 
quid  tu  sentias:  a 


is,  quae  nunquam 

placatione  Deo- 

.11  esse  potuisset. 


Habes,  Balbe,  quid    otta,  quid  pontifex 


ego     intelligam, 
e  enim  philosopho 


rationem  accipere  debeo  religionis ;  ma- 
joribus  autem  nostris,  etiam  nulla  ra- 
tione  reddita,  credere.  De  Natura  Deo- 
rum,  lib.  iii. 


A   GOOD    GOVERNMENT,    ETC.  51 

with  his  duty  and  the  dictates  of  his  conscience,  in  engaging  BOOK  «• 
him  to  watch  attentively  over  an  affair  of  such  importance.  CHAP'  "'• 
Let  him  employ  all  his  authority  in  order  to  encourage  virtue, 
and  suppress  vice :  let  the  public  establishments  be  all  directed 
to  this  end :  let  his  own  conduct,  his  example,  and  the  distri- 
bution of  favours,  posts,  and  dignities,  all  have  the  same  ten- 
dency. Let  him  extend  his  attention  even  to  the  private  life 
of  the  citizens,  and  banish  from  the  state  whatever  is  only 
calculated  to  corrupt  the  manners  of  the  people.  It  belongs 
to  politics  to  teach  him  in  detail  the  different  means  of  attain- 
ing this  desirable  end — to  show  him  those  he  should  prefer, 
and  those  he  ought  to  avoid,  on  account  of  the  dangers  that 
might  attend  the  execution,  and  the  abuses  that  might  be 
made  of  them.  We  shall  here  only  observe,  in  general,  that 
vice  may  be  suppressed  by  chastisements,  but  that  mild  and 
gentle  methods  alone  can  elevate  men  to  the  dignity  of  virtue ; 
it  may  be  inspired,  but  it  cannot  be  commanded. 

It  is  an  incontestable  truth,  that  the  virtues  of  the  citizens  ?  116.  The 
constitute  the  most  happy  dispositions  that  can  be  desired  by  natlon  ma7 
a  just  and  wise  government.     Here  then  is  an  infallible  cri-Coverthe 
terion,  by  which  the  nation  may  judge  of  the  intentions  of  intention  of 
those  who  govern  it.     If  they  endeavour  to  render  the  great  its  rulers. 
and  the  common  people  virtuous,  their  views  are  pure  and 
upright ;  and  you  may  rest  assured  that  they  solely  aim  at 
the  great  end  of  government — the  happiness  and  glory  of  the 
nation.     But  if  they  corrupt  the  morals  of  the  people,  spread 
a  taste  for  luxury,  effeminacy,  a  rage  for  licentious  pleasures 
— if  they  stimulate  the  higher  orders  to  a  ruinous  pomp  and 
extravagance — beware,  citizens  !  beware  of  those  corruptors  ! 
they  only  aim  at  purchasing  slaves  in  order  to  exercise  over 
them  an  arbitrary  sway. 

If  a  prince  has  the  smallest  share  of  moderation,  he  will 
never  have  recourse  to  these  odious  methods.  Satisfied  with 
his  superior  station  and  the  power  given  him  by  the  laws,  he 
proposes  to  reign  with  glory  and  safety ;  he  loves  his  people, 
and  desires  to  render  them  happy.  But  his  ministers  are  in 
general  impatient  of  resistance,  and  cannot  brook  the  slightest 
opposition :  if  he  surrenders  to  them  his  authority,  they  are  [  52  ] 
more  haughty  and  intractable  than  their  master :  they  feel 
not  for  his  people  the  same  love  that  he  feels:  "let  the  na- 
tion be  corrupted  (say  they)  provided  it  do  but  obey."  They 
dread  the  courage  and  firmness  inspired  by  virtue,  and  know 
that  the  distributor  of  favours  rules  as  he  pleases  over  men 
whose  hearts  are  accessible  to  avarice.  Thus  a  wretch  who 
exercises  the  most  infamous  of  all  professions,  perverts  the 
inclinations  of  a  young  victim  of  her  odious  traffic ;  she 
prompts  her  to  luxury  and  epicurism ;  she  inspires  her  with 
voluptuousness  and  vanity,  in  order  the  more  certainly  to 
betray  her  to  a  rich  seducer.  This  base  and  unworthy  crea- 
ture is  sometimes  chastised  by  the  magistrate ;  but  the  minis- 

123 


52  SECOND   OBJECT   OF 

BOOK  i.    ter,  who  is  infinitely  more  guilty,  wallows  in  wealth,  and  is 
CHAP.  xi.  jnveg^e(j  w^h  nonour  and  authority.    Posterity,  however,  will 
do  him  justice,  and  detest  the  corruptor  of  a  respectable  nation. 
§  117.  The       If  governors  endeavoured  to  fulfil  the  obligations  which  the 
state,  or  the  jaw  Qf  nature  iays  upon  them  with  respect  to  themselves,  and 
g"n,  ^ught"   in  tne"*  character  of  conductors  of  the  state,  they  would  be 
to  perfect     incapable  of  ever  giving  into  the  odious  abuse  just  mentioned. 
its  under-     Hitherto  we  have  considered  the  obligation  a  nation  is  under 
standing      ^Q  acqujre  knowledge  and  virtue,  or  to  perfect  its  understand- 
ing and  will ; — that  obligation,  I  say,  we  have  considered  in  re- 
lation to  the  individuals  that  compose  a  nation ;  it  also  belongs 
in  a  proper  and  singular  manner  to  the  conductors  of  the  state. 
A  nation,  while  she  acts  in  common,  or  in  a  body,  is  a  moral 
person  (Prelim.  §  2)  that  has  an  understanding  and  will  of  her 
own,  and  is  not  less  obliged  than  any  individual  to  obey  the 
laws  of  nature  (Book  I.  §  5),  and  to  improve  her  faculties 
(Book  I.  §  21).     That  moral  person  resides  in  those  who  are 
invested  with  the  public  authority,  and  represent  the  entire 
nation.     Whether  this  be  the  common  council  of  the  nation, 
an  aristocratic  body,  or  a  monarch,  this  conductor  and  repre- 
sentative of  the  nation,  this  sovereign,  of  whatever  kind,  is 
therefore  indispensably  obliged  to  procure  all  the  knowledge 
and  information  necessary  to  govern  well,  and  to  acquire  the 
practice  and  habit  of  all  the  virtues  suitable  to  a  sovereign. 

And  as  this  obligation  is  imposed  with  a  view  to  the  public 
welfare,  he  ought  to  direct  all  his  knowledge,  and  all  his  vir- 
tues, to  the  safety  of  the  state,  the  end  of  evil  society, 
g  us.  And       He  ought  even  to  direct,  as  much  as  possible,  all  the  abili- 
to  direct  the  ties,  the  knowledge,  and  the  virtues  of  the  citizens  to  this 

andtirtSs    Sreat  6I1^  '    S°  that  ^^  ma>?  n0t    °^  ^    USe^    to  tne  ™^~ 

of  the  citu    viduals  who  possess  them,  but  also  to  the  state.     This  is  one 
zens  to  the    of  the  great  secrets  in  the  art  of  reigning.     The  state  will  be 
welfare  of    powerful  and  happy,  if  the  good  qualities  of  the  subject,  pass- 
tie  8ociety-  ing  beyond  the  narrow  sphere  of  private  virtues,  become  civic 
virtues.     This  happy  disposition  raised  the  Roman  republic 
to  the  highest  pitch  of  power  and  glory. 

§  119.  Love     The  grand  secret  of  giving  to  the  virtues  of  individuals  a 
for  their      £urn  so  advantageous  to  the  state,  is  to  inspire  the  citizens 
mtry.       ^^  an  ar(jen|.  jove  for  their  country.     It  will  then  naturally 
[  53  ]   follow,  that  each  will  endeavour  to  serve  the  state,  and  to 
apply  all  his  powers  and  abilities  to  the  advantage  and  glory 
of  the  nation.     This  love  of  their  country  is  natural  to  all 
men.    The  good  and  wise  Author  of  nature  has  taken  care  to 
bind  them,  by  a  kind  of  instinct,  to  the  places  where  they 
received  their  first  breath,  and  they  love  their  own  nation,  as 
a  thing  with  which  they  are  intimately  connected.     But  it 
often  happens  that  some  causes  unhappily  weaken  or  destroy 
this  natural  impression.     The  injustice  or  the  severity  of  the 
government  too  easily  effaces  it  from  the  hearts  of  the  sub- 
jects ;  can  self-love  attach  an  individual  to  the  affairs  of  a 

124 


A   GOOD   GOVERNMENT,    ETC.  53 

country  where  every  thing  is  done  with  a  view  to  a  single  per-     BOOK  i. 
son  ? — far  from  it : — we  see,  on  the  contrary,  that  free  nations   CHAP-  xr" 


are  passionately  interested  in  the  glory  and  the  happiness  of 
their  country.  Let  us  call  to  mind  the  citizens  of  Rome  in 
the  happy  days  of  the  republic,  and  consider,  in  modern  times, 
the  English  and  the  Swiss. 

The  love  and  affection  a  man  feels  for  the  state  of  which  §  120.   in 
he  is  a  member,  is  a  necessary  consequence  of  the  wise  and  individuals, 
rational  love  he  owes  to  himself,  since  his  own  happiness  is 
connected  with  that  of  his  country.     This  sensation  ought 
also  to  flow  from  the  engagements  he  has  entered  into  with 
society.     He  has  promised  to  procure  its  safety  and  advan- 
tage as  far  as  in  his  power :  and  how  can  he  serve  it  with  zeal, 
fidelity,  or  courage,  if  he  has  not  a  real  love  for  it  ? 

The  nation  in  a  body  ought  doubtless  to  love  itself,  and  desire  §  121.   in 

its  own  happiness  as  a  nation.     The  sensation  is  too  natural  the  nation 

to  admit  of  any  failure  in  this  obligation :  but  this  duty  relates  °r  state  it- 

i     -i      i      ii  i      ,         .  i  •  v  self,  and  in 

more  particularly  to  the  conductor,  the  sovereign,  who  repre-  the  goye_ 
sents  the  nation,  and  acts  in  its  name.  He  ought  to  love  itreign. 
as  what  is  most  dear  to  him,  to  prefer  it  to  every  thing,  for 
it  is  the  only  lawful  object  of  his  care,  and  of  his  actions,  in 
every  thing  he  does  by  virtue  of  the  public  authority.  The 
monster  who  does  not  love  his  people  is  no  better  than  an 
odious  usurper,  and  deserves,  no  doubt,  to  be  hurled  from  the 
throne.  There  is  no  kingdom  where  the  statue  of  Codrus 
ought  not  to  be  placed  before  the  palace  of  the  sovereign. 
That  magnanimous  king  of  Athens  sacrificed  his  life  for  his 
people.*  That  great  prince  and  Louis  XII.  are  illustrious 
models  of  the  tender  love  a  sovereign  owes  to  his  subjects. 

The  term,  Country,  seems  to  be  pretty  generally  known :  g  122.   DO- 
but  as  it  is  taken  in  different  senses,  it  may  not  be  unuseful  finition  of 
to  give  it  here  an  exact  definition.     It  commonly  signifies  the the  term 
State  of  which  one  is  a  member :  in  this  sense1  we  have  used  country- 
it  in  the  preceding  sections ;  and  it  is  to  be  thus  understood   [  54  ] 
in  the  law  of  nations. 

In  a  more  confined  sense,  and  more  agreeably  to  its  ety- 
mology, this  term  signifies  the  state,  or  even  more  particularly 
the  town  or  place  where  our  parents  had  their  fixed  residence 
at  the  moment  of  our  birth.  In  this  sense,  it  is  justly  said, 
that  our  country  cannot  be  changed,  and  always  remains  the 
same,  to  whatsoever  place  we  may  afterwards  remove.  A 
man  ought  to  preserve  gratitude  and  affection  for  the  state 
to  which  he  is  indebted  for  his  education,  and  of  which  his 
parents  were  members  when  they  gave  him  birth.  But  as 
various  lawful  reasons  may  oblige  him  to  choose  another  coun- 
try,— that  is,  to  become  a  member  of  another  society;  so, 

*  His  country  being  attacked  by  the  should  remain  victorious,  Codrus  dis- 
Heraclidse,  he  consulted  the  oracle  of  guised  himself,  and,  rushing  into  the 
Apollo ;  and  being  answered,  that  the  battle,  was  killed  by  one  of  the  enemy's 
people  whose  chief  should  be  slain  soldiers. 

L2  125 


OBJECT   OF  A    GOOD   GOVERNMENT. 


shameful 
and  crimi- 
nal to  in- 
jure our 
country. 


§  124.  The 
glory  of 
good  citi- 
zens. (51) 

Examples. 


BOOK  i.    when  we  speak  in  general  of  the  duty  to  our  country,  the 

CHAP,  xi.  term  is  to  be  understood  as  meaning  the  state  of  which  a  man 

is  an  actual  member ;  since  it  is  the  latter,  in  preference  to 

every  other  state,  that  he  is  bound  to  serve  with  his  utmost 

efforts. 

\  123.  How  If  every  man  is  obliged  to  entertain  a  sincere  love  for  his 
country,  and  to  promote  its  welfare  as  far  as  in  his  power,  it 
is  a  shameful  and  detestable  crime  to  injure  that  very  country. 
He  who  becomes  guilty  of  it,  violates  his  most  sacred  en- 
gagements, and  sinks  into  base  ingratitude :  he  dishonours 
himself  by  the  blackest  perfidy,  since  he  abuses  the  confidence 
of  his  fellow-citizens,  and  treats  as  enemies  those  who  had  a 
right  to  expect  his  assistance  and  services.  We  see  traitors 
to  their  country  only  among  those  men  who  are  solely  sensi- 
ble to  base  interest,  who  only  seek  their  own  immediate  ad- 
vantage, and  whose  hearts  are  incapable  of  every  sentiment 
of  affection  for  others.  They  are,  therefore,  justly  detested 
by  mankind  in  general,  as  the  most  infamous  of  all  villains. 

On  the  contrary,  those  generous  citizens  are  loaded  with 
honour  and  praise,  who,  not  content  with  barely  avoiding  a 
failure  in  duty  to  their  country,  make  noble  efforts  in  her 
favour,  and  are  capable  of  making  her  the  greatest  sacrifices. 
The  names  of  Brutus,  Curtius,  and  the  two  Decii,  will  live 
as  long  as  that  of  Rome.  The  Swiss  will  never  forget  Ar- 
nold de  Winkelried,  that  hero,  whose  exploit  would  have 
deserved  to  be  transmitted  to  posterity  by  the  pen  of  a  Livy. 
He  truly  devoted  his  life  for  his  country's  sake :  but  he  de- 
voted it  as  a  general,  as  an  undaunted  warrior,  not  as  a  su- 
perstitious visionary.  That  nobleman,  who  was  of  the  country 
of  Underwald,  seeing,  at  the  battle  of  Sempach,  that  his 
countrymen  could  not  break  through  the  Austrians,  because 
the  latter,  armed  cap-a-pie,  had  dismounted,  and,  forming  a 
close  battalion,  presented  a  front  covered  with  steel,  and 
bristling  with  pikes  and  lances, — formed  the  generous  design 
of  sacrificing  himself  for  his  country.  "My  friends,"  said 
he  to  the  Swiss,  who  began  to  be  dispirited,  "  I  will  this  day 
give  my  life  to  procure  you  the  victory :  I  only  recommend 
to  you  ray  family :  follow  me,  and  act  in  consequence  of  what 
[  55  ]  you  see  me  do."  At  these  words  he  ranged  them  in  that  form 
which  the  Romans  called  cuncus,  and  placing  himself  in  the 
point  of  the  triangle,  marched  to  the  centre  of  the  enemy ; 
when,  embracing  between  his  arms  as  many  of  the  enemy's 
pikes  as  he  could  compass,  he  threw  himself  to  the  ground, 
thus  opening  for  his  followers  a  passage  to  penetrate  into  the 
midst  of  this  thick  battalion.  The  Austrians,  once  broken, 
were  conquered,  as  the  weight  of  their  armour  then  became 
fatal  to  them,  and  the  Swiss  obtained  a  complete  victory.* 

(51)  See    observations,    poet,   $   190,  1386.      The    Austrian   army   consisted 

p.  92. — C.  of  four  thousand   chosen   men,  among 

*  This  affair  happened  in  the  year  whom  were  a  great  number  of  princes, 
126 


OF  PIETY  AND   RELIGION.  55 


BOOK   I. 
CHAP.    XII. 


CHAP.  XII. 

OF   PIETY  AND   RELIGION. 

PIETY  and  religion  have  an  essential  influence  on  the  §  125.  Of 
happiness  of  a  nation,  and,  from  their  importance,  deserve  a  piety, 
particular  chapter.  Nothing  is  so  proper  as  piety  to  strength- 
en virtue,  and  give  it  its  due  extent.  By  the  word  Piety,  I 
mean  a  disposition  of  soul  that  leads  us  to  direct  all  our 
actions  towards  the  Deity,  and  to  endeavour  to  please  him 
in  every  thing  we  do.  To  the  practice  of  this  virtue  all 
mankind  are  indispensably  obliged :  it  is  the  purest  source 
of  their  felicity ;  and  those  who  unite  in  civil  society  are 
under  still  greater  obligations  to  practise  it.  A  nation  ought 
then  to  be  pious.  The  superiors  intrusted  with  the  public 
affairs  should  constantly  endeavour  to  deserve  the  approba- 
tion of  their  divine  Master ;  and  whatever  they  do  in  the 
name  of  the  state,  ought  to  be  regulated  by  this  grand  view. 
The  care  of  forming  pious  dispositions  in  all  the  people  should 
be  constantly  one  of  the  principal  objects  of  their  vigilance, 
and  from  this  the  state  will  derive  very  great  advantages.  A 
serious  attention  to  merit,  in  all  our  actions,  the  approbation 
of  an  infinitely  wise  Being,  cannot  fail  of  producing  excellent 
citizens.  Enlightened  piety  in  the  people  is  the  firmest  sup- 
port of  a  lawful  authority ;  and,  in  the  sovereign's  heart,  it 
is  the  pledge  of  the  people's  safety,  and  excites  their  confi- 
dence. Ye  lords  of  the  earth,  who  acknowledge  no  superior 
here  below,  what  security  can  we  have  for  the  purity  of  your 
intentions,  if  we  do  not  conceive  you  to  be  deeply  impressed 
with  respect  for  the  common  Father  and  Lord  of  men,  and 
animated  with  a  desire  to  please  him  ? 

We  have  already  insinuated  that  piety  ought   to  be  at-  §  126.   It 
tended  with  knowledge.     In  vain  would  we  propose  to  please  ought  to  be 
God,  if  we  know  not  the  means  of  doing  it.     But  what  a  al*?n? ed 

«        .,          •  i  ,  ,°,  ,.  ,       with  know- 

deluge  of  evils  arises,  when  men,  heated  by  so  powerful  aledge 

motive,  are  prompted  to  take  methods  that  are  equally  false  [  56  ] 
and  pernicious !  A  blind  piety  only  produces  superstitious 
bigots,  fanatics,  and  persecutors,  a  thousand  times  more  dan- 
gerous and  destructive  to  society  than  libertines  are.  There 
have  appeared  barbarous  tyrants  who  have  talked  of  nothing 
but  the  glory  of  God,  while  they  crushed  the  people,  and 

counts,   and  nobility   of   distinguished  noblemen  of  the  best  families  in   Ger- 

rank,    all    armed    from    head    to  foot.  many.      History  of  the   Helvetic    Con- 

The  Swiss  were  no  more  than  thirteen  federacy,  by  DE  WATTEVJLLE,  vol.  i.  p. 

hundred  men,  ill  armed.     In  this  battle,  183.  —  TSCHUDI. — ETTERLIN.  —  SCHODE- 

the  duke  of  Austria  perished,  with  two  LER.  —  K.t:  B.MAX. —  [See    the    national 

thousand  of  his  forces,  in  which  num-  consequences  of  this  valour,  stated  post, 

ber  were  six  hundred  and  seventy-six  §  190,  pp.  92-3.] 

127 


56  OF   PIETY  AND   RELIGION. 

BOOK  i.  trampled  under  foot  the  most  sacred  laws  of  nature.  It  was 
CHAP,  xii.  from  a  refinement  of  piety,  that  the  anabaptists  of  the  six- 
teenth century  refused  all  obedience  to  the  powers  of  the 
earth.  James  Clement  and  Ravaillac,*  those  execrable  par- 
ricides, thought  themselves  animated  by  the  most  sublime 
devotion. 

§  127.    Of       Religion  consists  in  the  doctrines  concerning  the  Deity  and 

religion  in-  ^e  things  of  another  life,  and  in  the  worship  appointed  to 

externaT      *ke  honour  of  the  Supreme  Being.     So  far  as  it  is  seated  in 

the  heart,  it  is  an  affair  of  conscience,  in  which  every  one 

ought  to  be  directed  by  his  own  understanding :  but  so  far  as 

it  is  external,  and  publicly  established,  it  is  an  affair  of  state. 

g  128.  Every  man  is  obliged  to  endeavour  to  obtain  just  ideas  of 

Rights  of     God,  to  know  his  laws,  his  views  with  respect  to  his  crea- 

individuals.  turegj  an(j  the  en(j  f()r  wkjch  they  were  create(J.  Man  (Joubt- 
leSS  owes  the  most  pure  love,  the  most  profound  respect  to 
his  Creator;  and  to  keep  alive  these  dispositions,  and  act  in 
consequence  of  them,  he  should  honour  God  in  all  his  actions, 
and  show,  by  the  most  suitable  means,  the  sentiments  that  fill 
Liberty  of  his  mind.  This  short  explanation  is  sufficient  to  prove  that 
conscience.  man  }s  essentially  and  necessarily  free  to  make  use  of  his 
own  choice  in  matters  of  religion.  His  belief  is  not  to  be 
commanded ;  and  what  kind  of  worship  must  that  be  which 
is  produced  by  force  ?  Worship  consists  in  certain  actions 
performed  with  an  immediate  view  to  the  honour  of  God ; 
there  can  be  no  worship  proper  for  any  man,  which  he  does 
not  believe  suitable  to  that  end.  The  obligation  of  sincerely 
endeavouring  to  know  God,  of  serving  him,  and  adoring  him 
from  the  bottom  of  the  heart,  being  imposed  on  man  by  his 
very  nature, — it  is  impossible  that,  by  his  engagements  with 
society,  he  should  have  exonerated  himself  from  that  duty, 
or  deprived  himself  of  the  liberty  which  is  absolutely  neces- 
sary for  the  performance  of  it.  It  must  then  be  concluded, 
that  liberty  of  conscience  is  a  natural  and  inviolable  right. 
It  is  a  disgrace  to  human  nature,  that  a  truth  of  this  kind 
should  stand  in  need  of  proof. 

§  129.  Pub-      But  we  should  take  care  not  to  extend  this  liberty  beyond 
lie  establish- jts  just  bounds.     In  religious   affairs  a  citizen  has   only  a 
"8nt  to  ke  free  from  compulsion,  but  can  by  no  means  claim 
that  of  openly  doing  what  he  pleases,  without  regard  to  the 
[  57  ]    consequences  it  may  produce  on  society.  (52)     The  establish- 
ment of  religion  by  law,  and  its  public  exercise,  are  matters 
of  state,  and  are  necessarily  under  the  jurisdiction  of  the 

*  The  former  assassinated  Henry  III.  to  have  been  an  impostor,  and  a  mur- 

of  France  ;  the  latter  murdered  his  sue-  derer  in  principle,  and  a  fanatic,  is  an 

cessor,  Henry  IV.  indictable  misdemeanor  at  common  law. 

(52)  AVith   respect  to   these  in    Eng-  Rex  v.  Waddington,  1  Barn.  &  Cress.  26. 

land,  and    punishments   for   the  viola-  And  as  to  modern  regulation,  see  4  Bla. 

tion,  see  4  Bla.  Com.  41  to  66.    Bias-  Com.  443.— C. 
phemy,  or  a  libel,  stating  our  Saviour 
128 


OF   PIETY  AND   RELIGION.  5 

political  authority.     If  all  men  are  bound  to  serve  God,  the     BOOK  ]• 
entire  nation,  in  her  national  capacity,  is  doubtless  obliged  to 
serve  and  honour  him  (Prelim.  §  5).     And  as  this  important 


duty  is  to  be  discharged  by  the  nation  in  whatever  manner  nation. 
she  judges  best, — to  the  nation  it  belongs  to  determine  what 
religion  she  will  follow,  and  what  public  worship  she  thinks 
proper  to  establish. 

If  there  be  as  yet  no  religion  established  by  public  autho-  $  130.  when 
rity,  the  nation  ought  to  use  the  utmost  care,  in  order  to  there  is  as 
know  and  establish  the  best.  That  which  shall  have  the  ap-  ye* no  esta- 
probation  of  the  majority  shall  be  received,  and  publicly  esta-  JJj££d  r< 
Wished  by  law ;  by  which  means  it  will  become  the  religion 
of  the  state.  But  if  a  considerable  part  of  the  nation  is  ob- 
stinately bent  upon  following  another,  it  is  asked — What  does 
the  law  of  nations  require  in  such  a  case  ?  Let  us  first  re- 
member that  liberty  of  conscience  is  a  natural  right,  and  that 
there  must  be  no  constraint  in  this  respect.  There  remain 
then  but  two  methods  to  take, — either  to  permit  this  party 
of  the  citizens  to  exercise  the  religion  they  choose  to  profess, 
or  to  separate  them  from  the  society,  leaving  them  their 
property,  and  their  share  of  the  country  that  belonged  to  the 
nation  in  common, — and  thus  to  form  two  new  states  instead 
of  one.  The  latter  method  appears  by  no  -means  proper :  it 
would  weaken  the  nation,  and  thus  would  be  inconsistent  with 
that  regard  which  she  owes  to  her  own  preservation.  It  is 
therefore  of  more  advantage  to  adopt  the  former  method,  and 
thus  to  establish  two  religions  in  the  state.  But  if  these  re- 
ligions are  too  incompatible ;  if  there  be  reason  to  fear  that 
they  will  produce  divisions  among  the  citizens,  and  disorder 
in  public  affairs,  there  is  a  third  method,  a  wise  medium  be- 
tween the  two  former,  of  which  the  Swiss  have  furnished  ex- 
amples. The  cantons  of  Glaris  and  Appenzel  were,  in  the 
sixteenth  century,  each  divided  into  two  parts :  the  one  pre- 
served the  Romish  religion,  and  the  other  embraced  the  Refor- 
mation ;  each  part  has  a  distinct  government  of  its  own  for 
domestic  affairs ;  but  on  foreign  affairs  they  unite,  and  form 
but  one  and  the  same  republic,  one  and  the  same  canton. 

Finally,  if  the  number  of  citizens  who  would  profess  a  dif- 
ferent religion  from  that  established  by  the  nation  be  incon- 
siderable ;  and  if,  for  good  and  just  reasons,  it  be  thought 
improper  to  allow  the  exercise  of  several  religions  in  the  state 
— those  citizens  have  a  right  to  sell  their  lands,  to  retire  with  * 
their  families,  and  take  all  their  property  with  them.  For 
their  engagements  to  society,  and  their  submission  to  the 
public  authority,  can  never  oblige  them  to  violate  their  con- 
sciences. If  the  society  will  not  allow  me  to  do  that  to  which 
I  think  myself  bound  by  an  indispensable  obligation,  it  is 
obliged  to  allow  me  permission  to  depart. 

When  the  choice  of  a  religion  is  already  made,  and  there  is  ?  131.  When 
one  established  by  law,  the  nation  ought  to  protect  and  sup- there  *  M 
17  129 


58  OF   PIETY   AND    RELIGION. 


BOOK 
CHAP. 


T-  port  that  religion,  and  preserve  it  as  an  establishment  of  the 
y-  greatest  importance,  without,  however,  blindly  rejecting  the 
religion.  changes  that  may  be  proposed  to  render  it  more  pure  and 
useful :  for  we  ought,  in  all  things,  to  aim  at  perfection  (§  21). 
But  as  all  innovations,  in  this  case,  are  full  of  danger,  and 
can  seldom  be  produced  without  disturbances,  they  ought  not 
to  be  attempted  upon  slight  grounds,  without  necessity,  or 
very  important  reasons.  It  solely  belongs  to  the  society,  the 
state,  the  entire  nation,  to  determine  the  necessity  or  propriety 
of  those  changes ;  and  no  private  individual  has  a  right  to 
attempt  them  by  his  own  authority,  nor  consequently  to  preach 
to  the  people  a  new  doctrine.  Let  him  offer  his  sentiments  to 
the  conductors  of  the  nation,  and  submit  to  the  orders  he  re- 
ceives from  them. 

But  if  a  new  religion  spreads,  and  becomes  fixed  in  the 
minds  of  the  people,  as  it  commonly  happens,  independently 
of  the  public  authority,  and  without  any  deliberation  in  com- 
mon, it  will  be  then  necessary  to  adopt  the  mode  of  reasoning 
we  followed  in  the  preceding  section  on  the  case  of  choosing 
a  religion  ;  to  pay  attention  to  the  number  of  those  who  follow 
the  new  opinions — to  remember  that  no  earthly  power  has 
authority  over  the  consciences  of  men, — and  to  unite  the 
maxims  of  sound  policy  with  those  of  justice  and  equity. 
$  132.  Du-  We  have  thus  given  a  brief  compendium  of  the  duties  and 
ties  and  rights  of  a  nation  with  regard  to  religion.  Let  us  now  come 
sovereign  &  *°  *nose  °f  tne  sovereign.  These  cannot  be  exactly  the  same 
with  regard  as  those  of  the  nation  which  the  sovereign  represents.  The 
to  religion,  nature  of  the  subject  opposes  it ;  for  in  religion  nobody  can 
give  up  his  liberty.  To  give  a  clear  and  distinct  view  of  those 
rights  and  duties  of  the  prince,  and  to  establish  them  on  a 
solid  basis,  it  is  necessary  here  to  refer  to  the  distinction  we 
have  made  in  the  two  preceding  sections :  if  there  is  question 
of  establishing  a  religion  in  a  state  that  has  not  yet  received 
one,  the  sovereign  may  doubtless  favour  that  which  to  him 
appears  the  true  or  the  best  religion, — may  have  it  announced 
to  the  people,  and,  by  mild  and  suitable  means,  endeavour  to 
establish  it : — he  is  even  bound  to  do  this,  because  he  is 
obliged  to  attend  to  every  thing  that  concerns  the  happiness  of 
the  nation.  But  in  this  he  has  no  right  to  use  authority  and 
constraint.  Since  there  was  no  religion  established  in  the 
society  when  he  received  his  authority,  the  people  gave  him 
no  power  in  this  respect ;  the  support  of  the  laAvs  relating  to 
religion  is  no  part  of  his  office,  and  does  not  belong  to  the  au- 
thority with  which  they  intrusted  him.  Numa  was  the  founder 
of  the  religion  of  the  ancient  Romans :  but  he  persuaded  the 
people  to  receive  it.  If  he  had  been  able  to  command  in  that 
instance,  he  would  not  have  had  recourse  to  the  revelations 
of  the  nymph  Egeria.  Though  the  sovereign  cannot  exert 
any  authority  in  order  to  establish  a  religion  where  there  is 
none,  he  is  authorized,  and  even  obliged,  to  employ  all  his 

130 


OP   PIETY  AND   RELIGION.  59 

power  to  hinder  the  introduction  of  one  which  he  judges  per-     BOOK  i. 
nicious  to  morality  and  dangerous  to  the  state.     For  he  ought  CHAP-  xn- 
to  preserve  his  people  from  every  thing  that  may  be  injurious 
to  them ;  and  so  far  is  a  new  doctrine  from  being  an  excep- 
tion to  this  rule,  that  it  is  one  of  its  most  important  objects. 
We  shall  see,  in  the  following  sections,  what  are  the  duties 
and  rights  of  the  prince  in  regard  to  the  religion  publicly  es- 
tablished. 

The  prince,  or  the  conductor,  to  whom  the  nation  has  in-  g  133. 
trusted  the  care  of  the  government  and  the  exercise  of  thewhere 
sovereign  power,  is  obliged  to  watch  over  the  preservation  of  ther® *s ,a°, 

•       i       T    •  i  i  •  i_v  i     j  £     i  j  i_       established 

the  received  religion,  the  worship  established  by  law,  and  has  religion. 
a  right  to  restrain  those  who  attempt  to  destroy  or  disturb  it. 
But  to  acquit  himself  of  this  duty  in  a  manner  equally  just 
and  wise,  he  ought  never  to  lose  sight  of  the  character  in 
which  he  is  called  to  act,  and  the  reason  of  his  being  invested 
with  it.  Religion  is  of  extreme  importance  to  the  peace  and 
welfare  of  society ;  and  the  prince  is  obliged  to  have  an  eye 
to  every  thing  in  which  the  state  is  interested.  This  is  all 
that  calls  him  to  interfere  in  religion,  or  to  protect  and  defend 
it.  It  is  therefore  upon  this  footing  only  that  he  can  inter- 
fere :  consequently,  he  ought  to  exert  his  authority  against 
those  alone  whose  conduct  in  religious  matters  is  prejudicial 
or  dangerous  to  the  state ;  but  he  must  not  extend  it  to  pre- 
tended crimes  against  God,  the  punishment  of  which  exclu- 
sively belongs  to  the  Sovereign  Judge,  the  searcher  of  hearts. 
Let  us  remember  that  religion  is  no  farther  an  affair  of  state, 
than  as  it  is  exterior  and  publicly  established :  that  of  the 
heart  can  only  depend  on  the  conscience.  The  prince  has  no 
right  to  punish  any  persons  but  those  that  disturb  society; 
and  it  would  be  very  unjust  in  him  to  inflict  pains  and  penal- 
ties on  any  person  whatsoever  for  his  private  opinions,  when 
that  person  neither  takes  pains  to  divulge  them,  nor  to  obtain 
followers.  It  is  a  principle  of  fanaticism,  a  source  of  evils 
and  of  the  most  notorious  injustice,  to  imagine  that  frail  mor- 
tals ought  to  take  up  the  cause  of  God,  maintain  his  glory  by 
acts  of  violence,  and  avenge  him  on  his  enemies.  Let  us  only 
give  to  sovereigns,  said  a  great  statesman  and  an  excellent 
citizen* — let  us  give  them,  for  the  common  advantage,  the 
power  of  punishing  whatever  is  injurious  to  charity  in  so- 
ciety. It  appertains  not  to  human  justice  to  become  the  aven- 
ger of  what  concerns  the  cause  of  Gf-od.'f  Cicero,  who  was  as  * 
able  and  as  great  in  state  affairs  as  in  philosophy  and  elo- 
quence, thought  like  the  Duke  of  Sully.  In  the  laws  he  pro- 
poses relating  to  religion,  he  says,  on  the  subject  of  piety 
and  interior  religion,  "  if  any  one  transgresses,  God  will  re- 
venge it:"  but  he  declares  the  crime  capital  that  should  be 

*  The   Duke   de  Sully ;  see  his  Me-        f  Deorum  injuriae  diis  curse.— Tacit. 
moirs  digested  by  M.  de  1'Ecluse,  vol.  v.    Ann.  book  i.  c.  73. 
pp.  135,  136. 

131 


5y  OF    PIETY   AND    KELIGION. 

BOOK  i.     committed  against  the  religious  ceremonies  established  for  pub 

CHAP.  xii.  jjc  ag-ajrg?  an(j  jn  whjch  the  whole  state  is  concerned.*     The 

[  60  ]   wise  Romans  were  very  far  from  persecuting  a  man  for  his 

creed ;  they  only  required  that  people  should  not  disturb  the 

public  order. 

§  134.    Ob-      The  creeds  or  opinions  of  individuals,  their  sentiments  with 
jects  of  his  respect  to  the  Deity, — in  a  word,  interior  religion — should, 
^e^^n     like  piety,  be  the  object  of  the^ prince's  attention:  he  should 
he  ought  to  neglect  no  means  of  enabling  his  subjects  to  discover  the  truth, 
employ.       and  of  inspiring  them  with  good  sentiments ;  but  he  should 
employ  for  this  purpose  only  mild  and  paternal  methods."!* 
Here  he  cannot  command  (§  128).     It  is  in  external  religion 
and  its  public  exercise  that  his  authority  may  be  employed. 
His  task  is  to  preserve  it,  and  to  prevent  the  disorders  and 
troubles  it  may  occasion.     To  preserve  religion,  he  ought  to 
maintain  it  in  the  purity  of  its  institution,  to  take  care  that  it 
be  faithfully  observed  in  all  its  public  acts  and  ceremonies, 
and  punish  those  who  dare  to  attack  it  openly.     But  he  can 
require  nothing  by  force  except  silence,  and  ought  never  to 
oblige  any  person  to  bear  a  part  in  external  ceremonies  : — by 
constraint,  he  would  only  produce  disturbances  or  hypocrisy. 
A  diversity  of  opinions  and  worship  has  often  produced 
disorders  and  fatal  dissensions  in  a  state :  and  for  this  rea- 
son, many  will  allow  but  one  and  the  same  religion.     A  pru- 
dent and  equitable  sovereign  will,  in  particular  conjunctures, 
see  whether  it  be  proper  to  tolerate  or  forbid  the  exercise  of 
several  different  kinds  of  worship. 

§  135.  Of  But,  in  general,  we  may  boldly  affirm  that  the  most  cer- 
toieration.  tain  and  equitable  means  of  preventing  the  disorders  that  may 
(53)  be  occasioned  by  difference  of  religion,  is  a  universal  tolera- 

tion of  all  religions  which  contain  no  tenets  that  are  danger- 
ous either  to  morality  or  to  the  state.  Let  interested  priests 
declaim  !  they  would  not  trample  under  foot  the  laws  of  hu- 
manity, and  those  of  God  himself,  to  make  their  doctrine 
triumph,  if  it  were  not  the  foundation  on  which  are  erected 
their  opulence,  luxury,  and  power.  Do  but  crush  the  spirit 
of  persecution, — punish  severely  whoever  shall  dare  to  dis- 
turb others  on  account  of  their  creed,  and  you  will  see  all 
sects  living  in  peace  in  their  common  country,  and  ambitious 
of  producing  good  citizens.  Holland,  and  the  states  of  the 
King  of  Prussia,  furnish  a  proof  of  this:  Calvinists,  Lutherans, 
Catholics,  Pietists,  Socinians,  Jews,  all  live  there  in  peace, 
because  they  are  equally  protected  by  the  sovereign ;  and  none 
are  punished,  but  the  disturbers  of  the  tranquillity  of  others. 

*  Qui  secus  faxit,  Deus  ipse  vindex  gib.  lib.  i.      What  a    fine  lesson  does 

erit Qui  non  paruerit,  capitale  this  pagan    philosopher  give   to  Chris- 

esto.— De  Legib.  lib.  ii.  tians  ! 

f  Quas    (religiones)   non    metu,    sed  (53)  See   the  modern    enactments,  4 

ea  conjunctione  quae  est   homini    cum  Bla.  Com.  440,  443 ;  Id.  52,  53,  in  the 

Deo,  conservandas  puto.     Cicero  de  Le-  notes. — C. 
132 


OF   PIETY  AND   RELIGION.  60 

If,  in  spite  of  the  prince's  care  to  preserve  the  established    BOOK  i. 
religion,  the  entire  nation,  or  the  greater  part  of  it,  should  CHAP'  XI1' 


be  disgusted  with  it,  and  desire  to  have  it  changed,  the  sove-? 136-  What 
reign  cannot  do  violence  to  his  people,  nor  constrain  them  in oughtto°do 
an  affair  of  this  nature.     The  public  religion  was  established  when  the 
for  the  safety  and  advantage  of  the  nation :  and,  besides  its  nation  is  re- 
proving inefficacious  when  it  ceases  to  influence  the  heart,  the  s°lved  to 
sovereign  has  here  no  other  authority  than  that  which  results 
from  the  trust  reposed  in  him  by  the  people,  and  they  have 
only  committed  to  him  that  of  protecting  whatever  religion    [  61 
they  think  proper  to  profess. 

But  at  the  same  time  it  is  very  just  that  the  prince  should  2  137. 
have  the  liberty  of  continuing  in  the  profession  of  his  own  fe'ence 
religion,  without  losing  his  crown.     Provided  that  he  protect 
the  religion  of  the  state,  this  is  all  that  can  be  required  of  a  prince  of 
him.     In  general,  a  difference  of  religion  can  never  make  tis  crown, 
any  prince  forfeit  his  claims  to  the  sovereignty,  unless  a  fun- 
damental law  ordain  it  otherwise.     The  pagan  Romans  did 
not  cease  to  obey  Constantine  when  he  embraced  Christian- 
ity ;  nor  did  the  Christians  revolt  from  Julian  after  he  had 
quitted  it.* 

We  have  established  liberty  of  conscience  for  individuals  §  138.   Da- 
(§  128).     However,  we  have  also  shown  that  the  sovereign t!ei?and, x, 

>.   ,  ,    .'  ,  ,,.  G  ,  rights  of  the 

has  a  right,  and  is  even  under  an  obligation,  to  protect  and  S0vereign 
support  the  religion  of  the  state,  and  not  suffer  any  person  reconciled 
to  attempt  to  corrupt  or  destroy  it, — that  he  may  even,  ac- with  those 
cording  to  circumstances,   permit  only  one  kind  of  public  ?f  the  sub" 
worship   throughout   the  whole   country.     Let  us  reconcile  je° 
those  different  duties  and  rights,  between  which  it  may  be 
thought  that  there  is  some  contradiction : — let  us,  if  possible, 
omit  no  material  argument  on  so  important  and  delicate  a 
subject. 

If  the  sovereign  will  allow  the  public  exercise  of  only  one 
and  the  same  religion,  let  him  oblige  nobody  to  do  any  thing 
contrary  to  his  conscience ;  let  no  subject  be  forced  to  bear  a 
part  in  a  worship  which  he  disapproves,  or  to  profess  a  reli- 
gion which  he  believes  to  be  false ;  but  let  the  subject  on 
his  part  rest  content  with  avoiding  the  guilt  of  a  shameful 
hypocrisy;  let  him,  according  to  the  light  of  his  own  know- 
ledge, serve  God  in  private  and  in  his  own  house — persuaded 
that  Providence  does  not  call  upon  him  for  public  worship, 
since  it  has  placed  him  in  such  circumstances  that  he  cannot 
perform  it  without  creating  disturbances  in  the  state.  God 
would  have  us  obey  our  sovereign,  and  avoid  every  thing  that 

*  When  the  chief  part  of  the  people  nevertheless  still  retained  all  her  rights. 
in  the  principality  of  Neufchatel  and  The  state  counsel  enacted  ecclesiastical 
Vallangin  embraced  the  reformed  re-  laws  and  constitutions  similar  to  those 
ligion  in  the  sixteenth  century,  Joan  of  of  the  reformed  churches  in  Switzerland, 
Hochberg,  their  sovereign,  continued  to  and  the  princess  gave  them  her  sane- 
live  in  the  Roman  Catholic  faith,  and  tion. 

M  133 


61  OF   PIETY  AND   RELIGION. 

c^pKxn  may  ke  pernicious  to  society.  These  are  immutable  precepts 
CHAP.  xii.  ^  t^e  jaw  Of  nature .  the  precept  that  enjoins  public  wor- 
ship is  conditional,  and  dependent  on  the  effects  which  that 
worship  may  produce.  Interior  worship  is  necessary  in  its 
own  nature ;  and  we  ought  to  confine  ourselves  to  it,  in  all 
cases  in  which  it  is  most  convenient.  Public  worship  is  ap- 
pointed for  the  edification  of  men  in  glorifying  God :  but  it 
counteracts  that  end,  and  ceases  to  be  laudable,  on  those  oc- 
[  62  ]  casions  when  it  only  produces  disturbances,  and  gives  offence. 
If  any  one  believes  it  absolutely  necessary,  let  him  quit  the 
country  where  he  is  not  allowed  to  perform  it  according  to 
the  dictates  of  his  own  conscience ;  let  him  go  and  join  those 
who  profess  the  same  religion  with  himself. 

g  139.    The      The  prodigious  influence  of  religion  on  the  peace  and  wel- 
fare of  society  incontrovertibly  proves  that  the  conductor  of 
have  the  in-  *ne  state  ought  to  have  the  inspection  of  what  relates  to  it, 
spection  of  and  an  authority  over  the  ministers  who  teach  it.     The  end 
the  affairs     Of  society  and  of  civil  government  necessarily  requires  that 
of  fellg!on'  he  who  exercises  the  supreme  power  should  be  invested  with 
rUy  over°    a^  the  rights  without  which  he  could  not  exercise  it  in  a 
those  who    manner  the  most  advantageous  to  the  state.     These  are  the 
teach  it       prerogatives  of  majesty  (§  45),  of  which  no  sovereign  can  di- 
vest himself,  without  the  express  consent  of  the  nation.     The 
inspection  of  the  affairs  of  religion,  and  the  authority  over  its 
ministers,  constitute,  therefore,  one  of  the  most  important  of 
those  prerogatives,  since,  without  this  power,  the  sovereign 
would  never  be  able  to  prevent  the  disturbances  that  religion 
might  occasion  in  the  state,  nor  to  employ  that  powerful  en- 
gine in  promoting  the  welfare  and  safety  of  the  society.     It 
would  be  certainly  very  strange  that  a  multitude  of  men  who 
united  themselves  in  society  for  their  common  advantage, 
that  each  might,  in  tranquillity,  labour  to  supply  his  necessi- 
ties, promote  his  own  perfection  and  happiness,  and  live  as 
becomes  a  rational  being :  it  would  be  very  strange,  I  say, 
that  such  a  society  should  not  have  a  right  to  follow  their 
own  judgment  in  an  affair  of  the  utmost  importance ;  to  de- 
termine what  they  think  most  suitable  with  regard  to  religion ; 
and  to  take  care  that  nothing  dangerous  or  hurtful  be  mixed 
with  it.     Who  shall  dare  to  dispute  that  an  independent  na- 
tion has,  in  this  respect  as  in  all  others,  a  right  to  proceed 
according  to  the  light  of  conscience  ?  and  when  once  she  has 
made  choice  of  a  particular  religion  and  worship,  may  she  not 
confer  on  her  conductor  all  the  power  she  possesses  of  regu- 
lating and  directing  that  religion  and  worship,  and  enforcing 
their  observance  ? 

Let  us  not  be  told  that  the  management  of  sacred  things 
belongs  not  to  a  profane  hand.  Such  discourses,  when  brought 
to  the  bar  of  reason,  are  found  to  be  only  vain  declamations. 
There  is  nothing  on  earth  more  august  and  sacred  than  a  sove- 
reign ;  and  why  should  God,  who  calls  him  by  his  providence 


OF   PIETY  AND   RELIGION.  t>2 

to  watch  over  the  safety  and  happiness  of  a  whole  nation,  de-  c*™K£n 
prive  him  of  the  direction  of  the  most  powerful  spring  that  — 
actuates  mankind  ?  The  law  of  nature  secures  to  him  this 
right,  with  all  others  that  are  essential  to  good  government ; 
and  nothing  is  to  be  found  in  Scripture  that  changes  this  dis- 
position. Among  the  Jews,  neither  the  king  nor  any  other 
person  could  make  any  innovation  in  the  law  of  Moses ;  hut 
the  sovereign  attended  to  its  preservation,  and  could  check 
the  high  priest  when  he  deviated  from  his  duty.  Where  is  it 
asserted  in  the  New  Testament,  that  a  Christian  prince  has 
nothing  to  do  with  religious  affairs?  Submission  and  obe- 
dience to  the  superior  powers  are  there  clearly  and  expressly 
enjoined.  It  were  in  vain  to  object  to  us  the  example  of  the  [  63  ] 
apostles,  who  preached  the  gospel  in  opposition  to  the  will  of 
sovereigns : — whoever  would  deviate  from  the  ordinary  rules, 
must  have  a  divine  mission,  and  establish  his  authority  by 
miracles. 

No  person  can  dispute  that  the  sovereign  has  a  right  to  take 
care  that  nothing  contrary  to  the  welfare  and  safety  of  the 
state  be  introduced  into  religion ;  and,  consequently,  he  must 
have  a  right  to  examine  its  doctrines,  and  to  point  out  what  is 
to  be  taught,  and  what  is  to  be  suppressed  in  silence. 

The  sovereign  ought,  likewise,  to  watch  attentively,  in  order  2 14^-  ^° 
to  prevent  the  established  religion  from  being  employed  to  0^entth9 
sinister  purposes,  either  by  making  use  of  its  discipline  to  abuse  of  tb« 
gratify  hatred,  avarice,  or  other  passions,  or  presenting  its  received  re- 
doctrines  in  a  light  that  may  prove  prejudicial  to  the  state. 
Of  wild  reveries,  seraphic  devotions,  and  sublime  speculations, 
what  would  be  the  consequences  to  society,  if  it  entirely  con- 
sisted of  individuals  whose  intellects  were  weak,  and  whose 
hearts  were  easily  governed  ? — the  consequences  would  be  a 
renunciation  of  the  world,  a  general  neglect  of  business  and 
of  honest  labour.  This  society  of  pretended  saints  would 
become  an  easy  and  certain  prey  to  the  first  ambitious  neigh- 
bour ;  or  if  suffered  to  live  in  peace,  it  would  not  survive  the 
first  generation ;  both  sexes,  consecrating  their  chastity  to 
God,  would  refuse  to  co-operate  in  the  designs  of  their  Crea- 
tor, and  to  comply  with  the  requisitions  of  nature  and  of  the 
state.  Unluckily  for  the  missionaries,  it  evidently  appears, 
even  from  Father  Charlevoix'  History  of  New  France,  that 
their  labours  were  the  principal  cause  of  the  ruin  of  the  Hu- 
rons.  That  author  expressly  says,  that  a  great  number  of 
those  converts  would  think  of  nothing  but  the  faith — that  they 
forgot  their  activity  and  valour — that  divisions  arose  between 
them  and  the  rest  of  the  nation,  &c.  That  nation  was,  there- 
fore, soon  destroyed  by  the  Iroquois,  whom  they  had  before 
been  accustomed  to  conquer.* 

To  the  prince's  inspection  of  the  affairs  and  concerns  of 


*  History  of  New  France,  books  v.  vi.  viL 

135 


63  OF   PIETY  AND   RELIGION. 

BOOK  i.    religion  we  have  joined  an  authority  over  its  ministers :  with- 
^^^  out  the  latter  power,  the  former  would  be  nugatory  and  inef- 
41.    The  fectuaj . — they  are  both  derived  from  the  same  principle.     It 
authority "   *s  absurd,  and  contrary  to  the  first  foundations  of  society, 
over  the  mi-  that  any  citizens  should  claim  an  independence  of  the  sove- 
nisters  of     reign  authority,  in  offices  of  such  importance  to  the  repose, 
religion.       ^  b.appiness,  and  safety  of  the  state.     This  is  establishing 
two  independent  powers  in  tlje  same  society — an  unfailing 
source  of  division,  disturbance,  and  ruin.     There  is  but  one 
supreme  power  in  the  state ;  the  functions  of  the  subordinate 
powers  vary  according  to  their  different  objects : — ecclesias- 
tics, magistrates,   and  commanders   of  the   troops,   are  all 
[  64  ]    officers  of  the  republic,  each  in  his  own  department ;  and  all 

are  equally  accountable  to  the  sovereign. 

g  142.  Na-  A  prince  cannot,  indeed,  justly  oblige  an  ecclesiastic  to 
autI°ritthlS  Preac^  a  doctrine,  or  to  perform  a  religious  rite,  which  the 
°n  y'  latter  does  not  think  agreeable  to  the  will  of  God.  But  if 
the  minister  cannot,  in  this  respect,  conform  to  the  will  of  his 
sovereign,  he  ought  to  resign  his  station,  and  consider  himself 
as  a  man  who  is  not  called  to  fill  it — two  things  being  neces- 
sary for  the  discharge  of  the  duty  annexed  to  it,  viz.  to  teach 
and  behave  with  sincerity,  according  to  the  dictates  of  his 
own  conscience,  and  to  conform  to  the  prince's  intentions  and 
the  laws  of  the  state.  Who  can  forbear  being  filled  with  in- 
dignation, at  seeing  a  bishop  audaciously  resist  the  orders  of 
the  sovereign,  and  the  decrees  of  the  supreme  tribunals,  so- 
lemnly declaring  that  he  thinks  himself  accountable  to  God 
alone  for  the  power  with  which  he  is  intrusted  ? 

j?  143.  Rule  On  the  other  hand,  if  the  clergy  are  rendered  contempti- 
to  be  ob-  kie?  it  wiu  foe  out  Of  their  power  to  produce  the  fruits  for 
relict  to*  whicn  their  ministry  was  appointed.  The  rule  that  should 
ecclesiastics.  °e  followed  with  respect  to  them  may  be  comprised  in  a  few 
words : — let  them  enjoy  a  large  portion  of  esteem ;  but  let 
them  have  no  authority,  and  still  less  any  claim  to  inde- 
pendence. In  the  first  place,  let  the  clergy,  as  well  as  every 
other  order  of  men,  be,  in  their  functions,  as  in  every  thing 
else,  subject  to  the  public  power,  and  accountable  to  the 
sovereign  for  their  conduct.  Secondly,  let  the  prince  take 
care  to  render  the  ministers  of  religion  respectable  in  the 
eyes  of  the  people ;  let  him  trust  them  with  the  degree  of 
authority  necessary  to  enable  them  to  discharge  their  duty 
with  success ;  let  him,  in  case  of  need,  support  them  with  the 
power  he  possesses.  Every  man  in  office  ought  to  be  vested 
with  an  authority  commensurate  to  his  functions ;  otherwise 
he  will  be  unable  to  discharge  them  in  a  proper  manner.  I 
see  no  reason  why  the  clergy  should  be  excepted  from  this 
general  rule;  only  the  prince  should  be  more  particularly 
watchful  that  they  do  not  abuse  their  authority ;  the  affair 
being  altogether  the  most  delicate,  and  the  most  fruitful  in 
dangers.  If  he  renders  the  character  of  churchmen  respecta- 

136 


OF   PIETY   AND   RELIGION.  64 

ble,  he  should  take  care  that  this  respect  be  not  carried  to  cJJJK^j 
such  a  superstitious  veneration  as  shall  arm  the  hand  of  an  CH  — '• 
ambitious  priest  with  a  powerful  engine  with  which  he  may 
force  weak  minds  into  whatever  direction  he  pleases.  When 
once  the  clergy  become  a  separate  body,  they  become  formida- 
ble. The  Romans  (we  shall  often  have  occasion  to  recur  to 
them) — the  wise  Romans  elected  from  among  the  senators 
their  pontifex-maximus  and  the  principal  ministers  of  the 
altar ;  they  knew  no  distinction  between  clergy  and  laity ; 
nor  had  they  a  set  of  gownsmen  to  constitute  a  separate  class 
from  the  rest  of  the  citizens. 

If  the  sovereign  be  deprived  of  this  power  in  matters  of  f  if*.   Re- 
religion,  and  this  authority  over  the  clergy,  how  shall  he  pre-  caP1*ulatlon 
serve  the  religion  pure  from  the  admixture  of  any  thing  con-  °ons  ^[^ 
trary  to  the  welfare  of  the  state  ?    How  can  he  cause  it  to  be  establish  the 
constantly  taught  and  practised  in  the  manner  most  conducive  sovereign's 
to  the  public  Avelfare  ?  and,  especially,  how  can  he  prevent  ngh*f m 
the  disorders  it  may  occasion,  either  by  its  doctrines,  or  the  ^iigion. 
manner  in  which  its  discipline  is  exerted  ?     These  cares  and   j"  65  1 
duties  can  only  belong  to  the  sovereign,  and  nothing  can  dis- 
pense with  his  discharging  them. 

Hence  we  see  that  the  prerogatives  of  the  crown,  in  eccle-  Authorities 
siastical  affairs,  have  been  constantly  and  faithfully  defended  and  exam- 
by  the  parliaments  of  France.  The  wise  and  learned  magis-ples' 
trates,  of  whom  those  illustrious  bodies  are  composed,  are 
sensible  of  the  maxims  which  sound  reason  dictates  on  this 
subject.  They  know  how  important  it  is  not  to  suffer  an 
affair  of  so  delicate  a  nature,  so  extensive  in  its  connections 
and  influence,  and  so  momentous  in  its  consequences,  to  be 
placed  beyond  the  reach  of  the  public  authority. — What ! 
Shall  ecclesiastics  presume  to  propose  to  the  people,  as  an 
article  of  faith,  some  obscure  and  useless  dogma,  which  con- 
stitutes no  essential  part  of  the  received  religion  ? — shall  they 
exclude  from  the  church,  and  defame  those  who  do  not  show 
a  blind  obedience  ? — shall  they  refuse  them  the  sacraments, 
and  even  the  rites  of  burial  ? — and  shall  not  the  prince  have 
power  to  protect  his  subjects,  and  preserve  the  kingdom  from 
a  dangerous  schism  ? 

The  kings  of  England  have  asserted  the  prerogatives  of 
their  crown :  they  have  caused  themselves  to  be  acknowledged 
heads  of  the  church  :  and  this  regulation  is  equally  approved 
by  reason  and  sound  policy,  and  is  also  conformable  to  ancient 
custom.  The  first  Christian  emperors  exercised  all  the  func- 
tions of  heads  of  the  church ;  they  made  laws  on  subjects 
relating  to  it,* — summoned  councils,  and  presided  in  them, — 
appointed  and  deposed  bishops,  &c.  In  Switzerland  there 
are  wise  republics,  whose  sovereigns,  knowing  the  full  extent 
of  the  supreme  authority,  have  rendered  the  ministers  of 

*  See  the  Theodosian  Code, 
18  M  2  137 


65  OF   PIETY  AND    RELIGION. 

BOOK  i.  religion  subject  to  it,  without  offering  violence  to  their  con- 
CHAP.  xir.  sciences>  They  have  prepared  a  formulary  of  the  doctrines 
that  are  to  be  preached,  and  published  laws  of  ecclesiastical 
discipline,  such  as  they  would  have  it  exercised  in  the  coun- 
tries under  their  jurisdiction, — in  order  that  those  who  will 
not  conform  to  these  establishments  may  not  devote  them- 
selves to  the  service  of  the  church.  They  keep  all  the  min- 
isters of  religion  in  a  lawful  dependence,  and  suffer  no  exertion 
of  church  discipline  but  under  their  own  authority.  It  is  not 
probable  that  religion  will  ever  occasion  disturbances  in  these 
republics. 

g  us.   Per-     If  Constantino  and  his  successors  had  caused  themselves 
nicious  con-  to  be  formally  acknowledged  heads  of  the  church, — and  if 

sequences     Christian  kings  and  princes  had,  in  this  instance,  known  how 
of  the  con-  ..  .    ,  *       /.  .  ,  ••     ,  -, -, 

trary  opi-     *°  maintain  the  rights  of  sovereignty, — would  the  world  ever 
nion.  have  witnessed  those  horrid  disorders  produced  by  the  pride 

and  ambition  of  some  popes  and  ecclesiastics,  emboldened  by 
[  66  ]  the  weakness  of  princes,  and  supported  by  the  superstition 
of  the  people, — rivers  of  blood  shed  in  the  quarrels  of  monks, 
about  speculative  questions  that  were  often  unintelligible  and 
almost  always  as  useless  to  the  salvation  of  souls  as  in  them- 
selves indifferent  to  the  welfare  of  society — citizens  and  even 
brothers  armed  against  each  other, — subjects  excited  to  revolt, 
and  kings  hurled  from  their  thrones  ?  Tantum  religio  potuit 
suadere  malorum  I  The  history  of  the  emperors  Henry  IV., 
Frederick  I.,  Frederick  II.,  and  Louis  of  Bavaria,  is  well  known. 
Was  it  not  the  independence  of  the  ecclesiastics, — was  it  not 
that  system  in  which  the  affairs  of  religion  are  submitted  to  a 
foreign  power, — that  plunged  France  into  the  horrors  of  the 
league,  and  had  nearly  deprived  her  of  the  best  and  greatest 
of  her  kings  ?  Had  it  not  been  for  that  strange  and  danger- 
ous system,  would  a  foreigner,  Pope  Sextus  V.,  have  under- 
taken to  violate  the  fundamental  law  of  the  kingdom,  and 
declared  the  lawful  heir  incapable  of  wearing  the  crown? 
Would  the  world  have  seen,  at  other  times  and  in  other 
places,*  the  succession  to  the  crown  rendered  uncertain  by  a 
bare  informality — the  want  of  a  dispensation,  whose  validity 
was  disputed,  and  which  a  foreign  prelate  claimed  the  sole 
right  of  granting  ?  Would  that  same  foreigner  have  arro- 
gated to  himself  the  power  of  pronouncing  on  the  legitimacy 
pf  the  issue  of  a  king  ?  Would  kings  have  been  assassinated 
in  consequence  of  a  detestable  doctrine  ?f  Would  a  part  of 
France  have  been  afraid  to  acknowledge  the  best  of  their 
kings,|  until  he  had  received  absolution  from  Rome  ?  And, 
would  many  other  princes  have  been  unable  to  give  a  solid 

*  In  England  under  Henry  VIII.  \  Though  Henry  IV.  returned  to  the 

•j"  Henry  III.  and  Henry  IV.  assas-  Romish    religion,  a  great    number  of 

sinated  by  fanatics,  who  thought  they  Catholics  did  not  dare  to  acknowledge 

were  serving   God  and  the  church  by  him  until  ho  had  received  the  pope's 

stabbing  their  king.  absolution. 
138 


OF   PIETY   AND    KELIGION.  66 

peace  to  their  people,  because  no  decision  could  be  formed    BOOK  r. 
within  their  own  dominions  on  articles  or  conditions  in  which  _CHAP-  *"•, 
religion  was  interested  ?* 

All  we  have  advanced  on  this  subject,  so  evidently  flows  §  146.  The 
from  the  notions  of  independence  and  sovereignty,  that  it  will  abuses  par- 
never  be  disputed  by  any  honest  man  who  endeavours  to  rea- *lc^;f'rized- 
son  justly.     If  a  state  cannot  finally  determine  every  thing  ej  of  th£°w" 
relating  to  religion,  the  nation  is  not  free,  and  the  prince  is  popes, 
but  half  a  sovereign.  There  is  no  medium  in  this  case ;  either 
each  state  must,  within  its  own  territories,  possess  supreme 
power  in  this  respect,  as  well  as  in  all  others,  or  we  must 
adopt  the  system  of  Boniface  VIII. ,  and  consider  all  Roman 
Catholic  countries  as  forming  only  one  state,  of  which  the 
pope  shall  be  the  supreme  head,  and  the  kings  subordinate 
administrators  of  temporal  affairs,  each  in  his   province, — 
nearly  as  the  sultans  were  formerly  under  the  authority  of  the 
caliphs.     We  know  that  the  above-mentioned  pope  had  the 
presumption  to  write  to  Philip  the  Fair,  king  of  France,  Scire 
te  volumus,  quod  in  spiritualibus  et  temporalibus  nobis  subes'f   [  67  ] 
— "We  would  have  thee  know  that  thou  art  subject  to  us  as 
well  in  temporals  as  in  spirituals."     And  we  may  see  in  the 
canon  law|  his  famous  bull  Unam  sanctam,  in  which  he  at- 
tributes to  the  church  two  swords,  or  a  double  power,  spiritual 
and  temporal, — condemns  those  who  think  otherwise,  as  men, 
who,   after  the  example  of  the  Manicheans,   establish  two 
principles, — and  finally  declares,  that  it  is  an  article  of  faith, 
necessary  to  salvation,  to  believe  that  every  human  creature  is 
subject  to  the  Roman  pontiff. § 

We  shall  consider  the  enormous  power  of  the  popes  as  the 
first  abuse  that  sprung  from  this  system,  which  divests  sove- 
reigns of  their  authority  in  matters  of  religion.  This  power 
in  a  foreign  court  directly  militates  against  the  independence 

*  Many  kings  of  France  in  the  civil  posed  him.  In  short,  here  are  the  ex- 
wars  on  account  of  religion.  pressions  he  made  use  of  in  addressing 

f  Tun-ctin.  Hist.  Ecclesiast.  Compen-  the  council  assembled  at  Home  on  the 

dium,   p.    1S2.     Where    may   also    be  occasion:  "Agite   nunc,  quseso,  patres 

seen   the   resolute  answer  of  the  king  et  principes  sanctissimi,  ut  omnis  mun- 

of  France.  dus   intelligat  et  cognoscat,  quia  si  po- 

J  Extravag.   Commun.  lib.  i.   tit.  De  testis  in  ccelo  ligare  et  solvere,  potestis 

Majoritate  &  Oledientia.  in    terra    imperia,   regna,    principatus, 

g  Gregory  VII.  endeavoured  to  ren-  ducatus,  marchias,  comitatus,  et  omni- 

der   almost    all   the   states    of  Europe  um  hominum  possessiones,  pro  meritis 

tributary  to  him.    He  maintained  that  tollere  unicuique   et   concedere."    NA- 

Hungary,     Dalmatia,     Russia,     Spain,  TAL,  ALEX.  Dissert.  Hist.  Eccl.  s.  xi.  and 

and  Corsica,  were   absolutely  his   pro-  xii.  p.  384. 

perty,  as  successor  to  St.  Peter,  or  were  The    canon    law  boldly  decides  that 

feudatory  dependencies  of  the  holy  see.  the   regal  power  is  subordinate  to  the 

GREG.     Epist.    Condi,    vol.    vi.    Edit,  priesthood.      "Imperium    non    prseest 

Harduin. — He   summoned  the  emperor  sacerdotio,  sed  subest,  et  ei  obedire  te- 

Henry  IV.  to   appear  before  him,  and  netur."     RTJBBJC.  ch.  ri.  De  Major,  et 

make  his  defence  against  the  accusa-  Obed.     "  Et  est  multum  allegabile,"  is 

tions  of  some  of  his  subjects :  and,  on  the  complaisant  remark  of  the  write- 

the  emperor's  non-compliance,  he  de-  of  the  article. 

139 


CHAP.    XII. 


67  OF   PIETY  AND   RELIGION. 

Of  nations  and  the  sovereignty  of  princes.  It  is  capable  of 
overturning  a  state ;  and  wherever  it  is  acknowledged,  the 
sovereign  finds  it  impossible  to  exercise  his  authority  in  such 
a  manner  as  is  most  for  the  advantage  of  the  nation.  We 
have  already,  in  the  last  section,  given  several  remarkable 
instances  of  this ;  and  history  presents  others  without  number. 
The  senate  of  Sweden  having  condemned  Trollius,  archbishop 
of  Upsal,  for  the  crime  of  rebellion,  to  be  degraded  from  his 
see,  and  to  end  his  days  in  a  monastery,  pope  Leo  X.  had  the 
audacity  to  excommunicate  the  administrator  Steno  and  the 
whole  senate,  and  sentenced  them  to  rebuild,  at  their  own  ex- 
pense, a  fortress  belonging  to  the  archbishop,  which  they  had 
caused  to  be  demolished,  and  pay  a  fine  of  a  hundred  thousand 
ducats  to  the  deposed  prelate.*  The  barbarous  Christiern, 
king  of  Denmark,  took  advantage  of  this  decree,  to  lay  waste 
the  territories  of  Sweden,  and  to  spill  the  blood  of  the  most 
illustrious  of  her  nobility.  Paul  V.  thundered  out  an  inter- 
dict against  Venice,  on  account  of  some  very  wise  laws  made 
with  respect  to  the  government  of  the  city,  but  which  dis- 
pleased that  pontiff,  who  thus  threw  the  republic  into  an  em- 
barrassment, from  which  all  the  wisdom  and  firmness  of  the 
68  ]  senate  found  it  difficult  to  extricate  it.  Pius  V.,  in  his  bull, 
In  Ccena  Domini,  of  the  year  1567,  declares,  that  all  princes 
who  shall  introduce  into  their  dominions  any  new  taxes,  of 
what  nature  soever  they  be,  or  shall  increase  the  ancient  ones, 
without  having  first  obtained  the  approbation  of  the  holy  see, 
are  ipso  facto  excommunicated.  Is  not  this  a  direct  attack 
on  the  independence  of  nations,  and  a  subversion  of  the  au- 
thority of  sovereigns  ? 

In  those  unhappy  times,  those  dark  ages  that  preceded 
the  revival  of  literature  and  the  Reformation,  the  popes  at- 
tempted to  regulate  the  actions  of  princes,  under  the  pretence 
of  conscience — to  judge  of  the  validity  of  their  treaties — to 
break  their  alliances,  and  declare  them  null  and  void.  But 
those  attempts  met  with  a  vigorous  resistance,  even  in  a 
country  which  is  generally  thought  to  have  then  possessed 
valour  alone,  with  a  very  small  portion  of  knowledge.  The 
pope's  nuncio,  in  order  to  detach  the  Swiss  from  the  interests 
of  France,  published  a  monitory  against  all  those  cantons 
that  favoured  Charles  VIII.,  declaring  them  excommunicated, 
if  within  the  space  of  fifteen  days  they  did  not  abandon  the 
cause  of  that  prince,  and  enter  into  the  confederacy  which 
was  formed  against  him ;  but  the  Swiss  opposed  this  act,  by 
protesting  against  it  as  an  iniquitous  abuse,  and  caused  their 
protest  to  be  publicly  posted  up  in  all  the  places  under  their 
jurisdiction :  thus  showing  their  contempt  for  a  proceeding 
that  was  equally  absurd  and  derogatory  to  the  rights  of  sove- 

*  History  of  the  Revolutiont  in  Sweden. 
140 


OP   PIETY   AND   RELIGION.  O» 

reigns.*     We  shall  mention  several  other  similar  attempts,     BOOK  i. 
when  we  come  to  treat  of  the  faith  of  treaties.  CHAP"  *n' 

This  power  in  the  popes  has  given  birth  to  another  abuse,  §  147. 
that  deserves  the  utmost  attention  from  a  wise  government. 2- 
We  see  several  countries  in  which  ecclesiastical  dignities,  and  men™co°J-~ 
all  the  higher  benefices,  are  distributed  by  a  foreign  power — ferredbya 
by  the  pope — who  bestows  them  on  his  creatures,  and  very  foreign 
often  on  men  who  are  not  subjects  of  the  state.     This  practice  P°wer- 
is  at  once  a  violation  of  the  nation's  rights,  and  of  the  prin- 
ciples of  common  policy.     A  nation  ought  not  to  suffer  fo- 
reigners to  dictate  laws  to  her,  to  interfere  in  her  concerns, 
or  deprive  her  of  her  natural  advantages ;  and  yet,  how  does 
it  happen  that  so  many  states  still  tamely  suffer  a  foreigner 
to  dispose  of  posts  and  employments  of  the  highest  importance 
to  their  peace  and  happiness  ?     The  princes  who  consented 
to  the  introduction  of  so  enormous  an  abuse  were  equally 
wanting  to  themselves  and  their  people.     In  our  times,  the 
court  of  Spain  has  been  obliged  to  expend  immense  sums,  in 
order  to  recover,  without  danger,  the  peaceable  possession  of 
a  right  which  essentially  belonged  to  the  nation  or  its  head. 

Even  in  those  states  whose  sovereigns  have  preserved  so  §  148. 
important  a  prerogative  of  the  crown,  the  abuse  in  a  great 3-  P°werful 
measure  subsists.    The  sovereign  nominates,  indeed,  to  bishop-  * ^^J  ^ 
rics  and  great  benefices ;  but  his  authority  is  not  sufficient  to  a  foreign 
enable  the"  persons  nominated  to  enter  on  the  exercise  of  their  court, 
functions ;  they  must  also  have  bulls  from  Rome.f     By  this   [  69  ] 
and  a  thousand  other  links  of  attachment,  the  whole  body  of 
the  clergy  in  those  countries  still  depend  on  the  court  of 
Rome ;  from  it  they  expect  dignities ;  from  it  that  purple, 
which,  according  to  the  proud  pretensions  of  those  who  are 
invested  with  it,  renders  them  equal  to  sovereigns.     From  the 
resentment  of  that  court  they  have  every  thing  to  fear ;  and 
of  course  we  see  them  almost  invariably  disposed  to  gratify 
it  on  every  occasion.     On  the  other  hand,  the  court  of  Rome 
supports  those  clergy  with  all  her  might,  assists  them  by  her 
politics  and  credit,  protects  them  against  their  enemies,  and 
against  those  who  would  set  bounds  to  their  power — nay, 
often  against  the  just  indignation  of  their  sovereign  ;  and  by 
this  means  attaches  them  to  her  still  more  strongly.     Is  it 
not  doing  an  injury  to  the  rights  of  society,  and  shocking  the 
first  elements  of  government,  thus  to  suffer  a  great  number 
of  subjects,  and  even  subjects  in  high  posts,  to  be  dependent 
on  a  foreign  prince,  and  entirely  devoted  to  him  ?     Would  a 

*  Vogel'a    Historical     and    Political  had  to  encounter,  when  he  wished  to 

Treatise  on  the  Alliances  between  France  confer   the    archbishopric    of   Sens    on 

and   the   Thirteen   Cantotw,  pp.  33  and  Renauld  de  Baune,  archbishop  of  Bour- 

36.  gea,  who  had  saved  France,  by  receiving 

•f-  We  may  see,  in  the  letters  of  Cardi-  that  great  prince  into  the  Roman  Catho- 

nal  d'Ossat,  what  difficulties,  what  op-  lie  church, 
position,  what  long  delays,  Henry  IV. 

141 


by  OF   PIETY  AND   RELIGION. 

BOOK  i.    prudent  sovereign  receive  men  who  preached  such  doctrines  ? 
CHAP.  xii.  rrhere  neecie(j  no  m0re  to  cause  all  the   missionaries  to  be 

driven  from  China. 

§  149.  it  was  for  the  purpose  of  more  firmly  securing  the  attach- 

bacTQf  the  men*  °^  churchmen  that  the  celibacy  of  the  clergy  was  in- 
priests.  vented.  A  priest,  a  prelate,  already  bound  to  the  see  of 
Rome  by  his  functions  and  his  hopes,  is  further  detached  from 
his  country,  by  the  celibacy  he  is  obliged  to  observe.  He  is 
not  connected  with  civil  society  by  a  family :  his  grand  inte- 
rests are  all  centred  in  the  church ;  and,  provided  he  has  the 
pope's  favour,  he  has  no  further  concern :  in  what  country 
soever  he  was  born,  Rome  is  his  refuge,  the  centre  of  his 
adopted  country.  Everybody  knows  that  the  religious  orders 
are  a  sort  of  papal  militia,  spread  over  the  face  of  the  earth, 
to  support  and  advance  the  interests  of  their  monarch.  This 
is  doubtless  a  strange  abuse — a  subversion  of  the  first  laws 
of  society.  But  this  is  not  all :  if  the  prelates  were  married, 
they  might  enrich  the  state  with  a  number  of  good  citizens ; 
rich  benefices  affording  them  the  means  of  giving  their  legiti- 
Convents.  mate  children  a  suitable  education.  But  what  a  multitude 
of  men  are  there  in  convents,  consecrated  to  idleness  under 
the  cloak  of  devotion !  Equally  useless  to  society  in  peace 
and  war,  they  neither  serve  it  by  their  labour  in  necessary 
professions,  nor  by  their  courage  in  arms :  yet  they  enjoy 
immense  revenues  ;  and  the  people  are  obliged,  by  the  sweat 
of  their  brow,  to  furnish  support  for  these  swarms  of  slug- 
gards. What  should  we  think  of  a  husbandman  who  pro- 
[  70  ]  tected  useless  hornets,  to  devour  the  honey  of  his  bees  ?*  It 
is  not  the  fault  of  the  fanatic  preachers  of  overstrained 
sanctity,  if  all  their  devotees  do  not  imitate  the  celibacy  of 
the  monks.  How  happened  it  that  princes  could  suffer  them 
publicly  to  extol,  as  the  most  sublime  virtue,  a  practice 
equally  repugnant  to  nature,  and  pernicious  to  society? 
Among  the  Romans,  laws  were  made  to  diminish  the  number 
of  those  who  lived  in  celibacy,  and  to  favour  marriage  :f  but 
superstition  soon  attacked  such  just  and  wise  regulations ; 
and  the  Christian  emperors,  persuaded  by  churchmen,  thought 
themselves  obliged  to  abrogate  them.J  Several  of  the  fa- 
thers of  the  church  have  censured  those  laws  against  celi- 
bacy— doubtless,  says  a  great  man,§  with  a  laudable  zeal  for 
the  things  of  another  life  ;  but  with  very  little  knoivledge  of 
the  affairs  of  this.  This  great  man  lived  in  the  church  of 
Rome : — he  did  not  dare  to  assert,  in  direct  terms,  that  volun- 
tary celibacy  is  to  be  condemned  even  with  respect  to  con- 

*  This  reflection  has   no  relation  to  always  laudable,  and  may  become  very 

the  religious  houses  in  which  literature  useful  to  the  state, 

is  cultivated.     Establishments  that  af-  f  The  Papia-Poppaean  law. 

ford  to  learned  men  a  peaceful  retreat,  j  In  the  Theodosian  Code, 

and   that   leisure    and    tranquillity  re-  \  The   president  de   Montesquieu,  in 

quired  in   deep  scientific  research,  are  his  Spirit  of  Laws. 
142 


OF   PIETY  AND    RELIGION.  70 

science  and  the  things  of  another  life : — but  it  is  certainly  a     BOOK  i. 
conduct  well  becoming  genuine  piety,  to  conform  ourselves  to  CHAP-  *"• 
nature,  to  fulfil  the  views  of  the  Creator,  and  to  labour  for 
the  welfare  of  society.     If  a  person  is  capable  of  rearing  a 
family,  let  him  marry,  let  him  be  attentive  to  give  his  chil- 
dren a  good  education: — in  so  doing,  he  will  discharge  his 
duty,  and  be  undoubtedly  in  the  road  to  salvation. 

The  enormous  and  dangerous  pretensions   of  the    clergy  ?  150. 
are  also  another  consequence  of  this    system,  which  places5-  Enor' 
every  thing  relating  to   religion    beyond   the  reach  of  the™°"^gCJf 
civil  power.     In  the  first  place,  the  ecclesiastics,  under  pre-  the  clergy, 
tence  of  the  holiness   of  their  functions,  have  raised  them- 
selves above  all  the  other  citizens,  even  the  principal  magis- Pre'emi' 
trates :    and,  contrary   to   the   express  injunctions  of  their ner 
master,  who  said  to  his  apostles,  seek  not  the  first  places  at 
feasts,  they  have  almost  everywhere  arrogated  to  themselves 
the  first  rank.     Their  head,  in  the  Roman  church,  obliges 
sovereigns  to  kiss  his  feet ;  emperors  have  held  the  bridle  of 
his  horse ;  and  if  bishops  or  even  simple  priests  do  not  at 
present  raise  themselves  above  their  prince,  it  is  because  the 
times  will  not  permit  it :  they  have  not  always  been  so  mo- 
dest; and    one  of  their  writers  has  had   the    assurance   to 
assert,  that  a  priest  is  as  much  above  a  Icing  as  a  man  is  above 
a  beast.*-  How  many  authors,  better  known  and  more  esteemed 
than  the  one  just  quoted,  have  taken  a  pleasure  in  praising 
and    extolling   that   silly  speech  attributed  to  the  emperor    [  71  ] 
Theodosius  the  First — Ambrose  has  taught  me  the  great  dif- 
ference there  is  between  the  empire  and  the  priesthood  ! 

We  have  already  observed  that  ecclesiastics  ought  to  be 
honoured:  but  modesty,  and  even  humility,  should  charac- 
terize them :  and  does  it  become  them  to  forget  it  in  their 
own  conduct,  while  they  preach  it  to  others  ?  I  would  not 
mention  a  vain  ceremonial,  were  it  not  attended  with  very 
material  consequences,  from  the  pride  with  which  it  inspires 
many  priests,  and  the  impressions  it  may  make  on  the  minds 
of  the  people.  It  is  essentially  necessary  to  good  order,  that 
subjects  should  behold  none  in  society  so  respectable  as  their 
sovereign,  and,  next  to  him,  those  on  whom  he  has  devolved 
a  part  of  his  authority. 

Ecclesiastics  have  not  stopped  in  so  fair  a  path.     Not  con- §151.  6.  In. 
tented  with  rendering  themselves  independent  with  respect  to  dependence, 
their  functions, — by  the  aid  of  the  court  of  Rome,  they  have Immunitie8- 
even  attempted  to  withdraw  themselves  entirely,  and  in  every 
respect,  from  all  subjection  to  the  political  authority.     There 
have  been  times  when  an  ecclesiastic  could  not  be  brought 
before  a  secular  tribunal  for  any  crime  whatsoever. f     The 

*  Tantum  sacerdos  proestat  regi,  quan-  f  The  congregation  of  Immunities 
turn  homo  bestia:.  Stanislaus  Orichovius.  has  decided  that  the  cognisance  of 
—  Vide  Tribbcchor.  Exerc.  1,  ad  Baron,  causes  against  ecclesiastics,  even  for 
Annal.Sect 2,  et  Thomas.  Nut.ad.Lancell.  the  crime  of  high  treason,  exclusively 

143 


OF   PIETY   AND   RELIGION. 


BOOK   I. 
CHAP.    XII. 


canon  law  declares  expressly,  It  is  indecent  for  laymen  to 
judge  a  churchman*  The  popes  Paul  III.,  Pius  V.,  and 
Urban  VIII.,  excommunicated  all  lay  judges  who  should 
presume  to  undertake  the  trial  of  ecclesiastics.  Even  the 
bishops  of  France  have  not  been  afraid  to  say  on  several 
occasions,  that  they  did  not  depend  on  any  temporal  prince  ; 
and,  in  1656,  the  general  assembly  of  the  French  clergy 
had  the  assurance  to  use  the  following  expressions — "  The 
decree  of  council  having  been  read,  was  disapproved  by  the 
assembly,  because  it  leaves  the  king  judge  over  the  bishops, 
and  seems  to  subject  their  immunities  to  his  judges ."f  There 
are  decrees  of  the  popes  that  excommunicate  whoever  im- 
prisons a  bishop.  According  to  the  principles  of  the  church 
of  Rome,  a  prince  has  not  the  power  of  punishing  an  eccle- 
siastic with  death,  though  a  rebel  or  a  malefactor  ; — he  must 
first  apply  to  the  ecclesiastical  power  ;  and  the  latter  will,  if 
it  thinks  proper,  deliver  up  the  culprit  to  the  secular  arm, 
after  having  degraded  him.J  History  affords  us  a  thousand 


belongs  to  the  spiritual  court : — "  Cog- 
nitio  causae  contra  ecclesiasticos,  etiam 
pro  delicto  hrsic  majestatis,  feri  debet 
a  judice  ecclesiastico."  RICCI  Synops. 
Decret.  et  Resol.  S.  Congreg.  Immunit. 
p.  105. — A  constitution  of  pope  Ur- 
ban VI.  pronounces  those  sovereigns 
or  magistrates  guilty  of  sacrilege,  who 
shall  banish  an  ecclesiastic  from  their 
territories,  and  declares  them  to  have 
ipso  facto  incurred  the  sentence  of  ex- 
communication. Cap.  II.  De  Fora. 
Compet  in  VII.  To  this  immunity 
may  be  added  the  indulgence  shown 
by  the  ecclesiastical  tribunals  to  the 
clergy,  on  whom  they  never  inflicted 
any  but  slight  punishments,  even  for 
the  most  atrocious  crimes.  The  dread- 
ful disorders  that  arose  from  this  cause, 
at  length  produced  their  own  remedy 
in  France,  where  the  clergy  were  at 
length  subjected  to  the  temporal  juris- 
diction for  all  transgressions  that  are  in- 
jurious to  society.  See  PAPON  Arrets 
Notables,  book  i.  tit.  v.  act  34. 

*  Indecorum  est  laicos  homines  viros 
ecclesiasticos  judicare.  Can.  in  nona 
actione  22,  xvi.  q.  7. 

f  See  the  Statement  of  Facts  on  the 
System  of  Independence  of  Bishops. 

J  In  the  year  1725,  a  parish  priest, 
of  the  canton  of  Lucerne,  having  re- 
fused to  appear  before  the  supreme 
council,  was,  for  his  contumacy,  ba- 
nished from  the  canton.  Hereupon 
his  diocesan,  the  bishop  of  Constance, 
had  the  assurance  to  write  to  the  coun- 
cil that  they  had  infringed  the  ecclesi- 
astical immunities — that  "it  is  unlaw- 


ful  to  subject  the  ministers  of  God  to 
the  decisions  of  the  temporal  power." 
In  these  pretensions  he  was  sanctioned 
by  the  approbation  of  the  pope's  nun- 
cio and  the  court  of  Rome.  But  the 
council  of  Lucerne  firmly  supported  the 
rights  of  sovereignty,  and,  without  en- 
gaging with  the  bishop  in  a  controversy 
which  would  have  been  derogatory  to 
their  dignity,  answered  him — "Your 
lordship  quotes  various  passages  from 
the  writings  of  the  fathers,  which  we, 
on  our  side,  might  also  quote  in  our 
own  favour,  if  it  were  necessary,  or  if 
there  was  question  of  deciding  the  con- 
test by  dint  of  quotation.  But  let  your 
lordship  rest  assured  that  we  have  a 
right  to  summon  before  us  a  priest,  our 
natural  subject,  who  encroaches  on  our 
prerogatives — to  point  out  to  him  his 
error — to  exhort  him  to  a  reform  of 
his  conduct — and,  in  consequence  of 
his  obstinate  disobedience,  after  repeat- 
ed citations,  to  banish  him  from  our 
dominions.  We  have  not  the  least 
doubt  that  this  right  belongs  to  us; 
and  we  are  determined  to  defend  it. 
And  indeed  it  ought  not  to  be  proposed 
to  any  sovereign  to  appear  as  party  in 
a  contest  with  a  refractory  subject  like 
him — to  refer  the  cause  to  the  decision 
of  a  third  party,  whoever  he  be — and 
run  the  risk  of  being  condemned  to 
tolerate  in  the  state  a  person  of  such 
character,  with  what  dignity  soever  he 
might  be  invested,"  Ac.  The  bishop 
of  Constance  had  proceeded  so  far  as 
to  assert,  in  his  letter  to  the  canton, 
dated  December  18th,  1725,  that 


OF   PIETY  AND   RELIGION.  72 

examples  of  bishops  who  remained  unpunished,  or  were  but    BOOK  i. 
slightly  chastised,  for  crimes  for  which  nobles  of  the  highest  CHAP-  xn- 
rank  forfeited  their  lives.     John  de  Braganza,  king  of  Portu- 
gal, justly  inflicted  the  penalty  of  death  on  those  noblemen 
who  had  conspired  his  destruction :  but  he  did  not  dare  to 
put  to  death  the  archbishop   of  Braga,  the   author  of  that 
detestable  plot.* 

For  an  entire  body  of  men,  numerous  and  powerful,  to 
stand  beyond  the  reach  of  the  public  authority,  and  be  de- 
pendent on  a  foreign  court,  is  an  entire  subversion  of  order 
in  the  republic,  and  a  manifest  diminution  of  the  sovereignty. 
This  is  a  mortal  stab  given  to  society,  whose  very  essence  it 
is,  that  every  citizen  should  be  subject  to  the  public  autho- 
rity. Indeed  the  immunity  which  the  clergy  arrogate  to 
themselves  in  this  respect,  is  so  inimical  to  the  natural  and 
necessary  rights  of  a  nation,  that  the  king  himself  has  not 
the  power  of  granting  it.  But  churchmen  will  tell  us  they 
derive  this  immunity  from  God  himself ;  but  till  they  have 
furnished  some  proof  of  their  pretensions,  let  us  adhere  to 
this  certain  principle,  that  God  desires  the  safety  of  states, 
and  not  that  which  will  only  be  productive  of  disorder  and 
destruction  to  them. 

The  same  immunity  is  claimed  for  the  possessions  of  the  §  152. 
church.     The  state  might,  no  doubt,   exempt  those  posses-7-  immuni- 
sions  from  every  species  of  tax  at  a  time  when  they  were  ty0^e^ 
scarcely  sufficient  for  the  support  of  the  ecclesiastics  ;  but,  p°' 
for  that  favour,  these  men  ought  to  be  indebted  to  the  public 
authority  alone,  which  has  always  a  right  to  revoke  it,  when- 
ever the  welfare  of  the  state  makes  it  necessary.     It  being 
one  of  the  fundamental  and  essential  laws  of  every  society, 
that,  in  case  of  necessity,  the  wealth  of  all  the  members  ought   [  73  ] 
to  contribute  proportionally  to  the  common  necessities — the 
prince  himself  cannot,  of  his  own  authority,  grant  a  total 
exemption  to  a  very  numerous  and  rich  body,  without  being 
guilty  of  extreme  injustice  to  the  rest  of  his  subjects,  on 
whom,  in  consequence  of  that  exemption,  the  whole  weight 
of  the  burden  will  fall. 

The  possessions  of  the  church  are  so  far  from  being  en- 
titled to  an  exemption  on  account  of  their  being  consecrated 
to  God,  that,  on  the  contrary,  it  is  for  that  very  reason  they 
ought  to  be  taken  the  first  for  the  use  and  safety  of  the  state. 
For  nothing  is  more  agreeable  to  the  common  Father  of  man-  *- 
kind  than  to  save  a  state  from  ruin.  God  himself  having  no 
need  of  anything,  the  consecration  of  wealth  to  him  is  but  a 
dedication  of  it  to  such  uses  as  shall  be  agreeable  to  him. 
Besides,  a  great  part  of  the  revenues  of  the  church,  by  the 

"  churchmen,    as    soon    as    they   have     fore."     Memorial  on  the  Dispute  between 
received  holy  orders,  ceased  to  be  natu-     the   Pope   and   the   Canton  of  Lucerne, 
ral  subjects,  and  are  thus  released  from    p.  65. 
the  bondage    in  which   they  lived  be-        *  Revolutions  of  Portugal. 

19  N  145 


73  OF   PIETY   AND   RELIGION. 


BOOK  i.    confession  of  the  clergy  themselves,  is  destined  for  the  poor. 

CHAP.  xn.  »«••  «  -          c*'  .         .....  ,       —     J 


When  the  state  is  in  necessity,  it  is  doubtless  the  first  and 
principal  pauper,  and  the  most  worthy  of  assistance.  We 
may  extend  this  principle  even  to  the  most  common  cases, 
and  safely  assert  that  to  supply  a  part  of  the  current  ex- 
penses of  the  state  from  the  revenues  of  the  church,  and  thus 
take  so  much  from  the  weight  of  the  people's  burden,  is  really 
giving  a  part  of  those  revenues  to  the  poor,  according  to  their 
original  destination.  But  it  is  really  contrary  to  religion  and 
the  intentions  of  the  founders  to  waste  in  pomp,  luxury,  and 
epicurism,  those  revenues  that  ought  to  be  consecrated  to  the 
relief  of  the  poor.* 

Not  satisfied,  however,  with  rendering  themselves  inde- 
muniTation  Pen(ient,  the  ecclesiastics  undertook  to  bring  mankind  under 
of  men  in  their  dominion  ;  and  indeed  they  had  reason  to  despise  the 
office.  stupid  mortals  who  suffered  them  to  proceed  in  their  plan. 
Excommunication  was  a  formidable  weapon  among  ignorant 
and  superstitious  men,  who  neither  knew  how  to  keep  it 
within  its  proper  bounds,  nor  to  distinguish  between  the  use 
and  the  abuse  of  it.  Hence  arose  disorders  which  have  pre- 
vailed in  some  protestant  countries.  Churchmen  have  pre- 
sumed, by  their  own  authority  alone,  to  excommunicate  men 
in  high  employments,  magistrates  whose  functions  were  daily 
useful  to  society — and  have  boldly  asserted  that  those  officers 
of  the  state,  being  struck  with  the  thunders  of  the  church, 
could  no  longer  discharge  the  duties  of  their  posts.  What  a 
perversion  of  order  and  reason !  What !  shall  not  a  nation 
be  allowed  to  intrust  its  affairs,  its  happiness,  its  repose  and 
safety,  to  the  hands  of  those  whom  it  deems  the  most  skilful 
and  the  most  worthy  of  that  trust  ?  Shall  the  power  of  a 
churchman,  whenever  he  pleases,  deprive  the  state  of  its 
wisest  conductors,  of  its  firmest  supports,  and  rob  the  prince 
of  his  most  faithful  servants  ?  So  absurd  a  pretension  has 
been  condemned  by  princes,  and  even  by  prelates,  respect- 
able for  their  character  and  judgment.  We  read  in  the  171st 
letter  of  Ives  de  Chartres,  to  the  Archbishop  of  Sens,  that  the 
royal  capitularies  (conformably  to  the  thirteenth  canon  of  the 
[  74  ]  twelfth  council  of  Toledo,  held  in  the  year  681)  enjoined  the 
priests  to  admit  to  their  conversation  all  those  whom  the 
king's  majesty  had  received  into  favour,  or  entertained  at 
his  table,  though  they  had  been  excommunicated  by  them, 
or  by  others,  in  order  that  the  church  might  not  appear  to 
reject  or  condemn  those  whom  the  king  was  pleased  to  employ 
in  his  service.* 

The  excommunications  pronounced  against  the  sovereigns 
themselves,  and  accompanied  with  the  absolution  of  their 
subjects  from  their  oaths  of  allegiance,  put  the  finishing 
stroke  to  this  enormous  abuse ;  and  it  is  almost  incredible 


*  See  Letters  on  the  Pretensions  of  the  Clergy. 


OF   PIETY   AND   RELIGION.  74 

that  nations  should  have  suffered  such  odious  procedures.  BOOK  i. 
We  have  slightly  touched  on  this  subject  in  §§  145  and  146.  CHAP"  ™ 
The  thirteenth  century  gives  striking  instances  of  it.  Otho 
IV.  for  endeavouring  to  oblige  several  provinces  of  Italy  to 
submit  to  the  laws  of  the  empire,  was  excommunicated  and 
deprived  of  the  empire  by  Innocent  III.  and  his  subjects 
absolved  from  their  oath  of  allegiance.  Finally,  this  unfor- 
tunate emperor,  being  abandoned  by  the  princes,  was  obliged 
to  resign  the  crown  to  Frederic  II.  John,  king  of  England, 
endeavouring  to  maintain  the  rights  of  his  kingdom  in  the 
election  of  an  archbishop  of  Canterbury,  found  himself  ex- 
posed to  the  audacious  enterprises  of  the  same  pope.  Inno- 
cent excommunicated  the  king — laid  the  whole  kingdom  under 
an  interdict — had  the  presumption  to  declare  John  unworthy 
of  the  throne,  and  to  absolve  his  subjects  from  their  oath  of 
fidelity ;  he  stirred  up  the  clergy  against  him — excited  his 
subjects  to  rebel — solicited  the  king  of  France  to  take  up 
arms  to  dethrone  him — publishing,  at  the  same  time,  a  cru- 
sade against  him,  as  he  would  have  done  against  the  Sara- 
cens. The  king  of  England  at  first  appeared  determined  to 
defend  himself  with  vigour ;  but  soon  losing  courage,  he  suf- 
fered himself  to  be  brought  to  such  an  excess  of  infamy,  as 
to  resign  his  kingdoms  into  the  hands  of  the  pope's  legate, 
to  receive  them  back  from  him,  and  hold  them  as  a  fief  of 
the  church^  on  condition  of  paying  tribute.* 

The  popes  were  not  the  only  persons  guilty  of  such  enor- 
mities :  there  have  also  been  councils  who  bore  a  part  in 
them.  That  of  Lyons,  summoned  by  Innocent  IV.,  in  the 
year  1245,  had  the  audacity  to  cite  the  emperor  Frederic  II. 
to  appear  before  them  in  order  to  exculpate  himself  from  the 
charges  brought  against  him — threatening  him  with  the 
thunders  of  the  church  if  he  failed  to  do  it.  That  great 
prince  did  not  give  himself  much  trouble  about  so  irregular 
a  proceeding.  He  said — "that  the  pope  aimed  at  rendering 
himself  both  a  judge  and  a  sovereign ;  but  that,  from  all  an- 
tiquity, the  emperors  themselves  had  called  councils,  where 
the  popes  and  prelates  rendered  to  them,  as  to  their  sove- 
reigns, the  respect  and  obedience  that  was  their  due."f  The  [  75  ] 
emperor,  however,  thinking  it  necessary  to  yield  a  little  to 
the  superstition  of  the  times,  condescended  to  send  ambassa- 
dors to  the  council,  to  defend  his  cause ;  but  this  did  not 
prevent  the  pope  from  excommunicating  him,  and  declaring 
him  deprived  of  the  crown.  Frederic,  like  a  man  of  a  su- 
perior genius,  laughed  at  the  empty  thunders  of  the  Vatican,  , 
and  proved  himself  able  to  preserve  the  crown  in  spite  of  the 
election  of  Henry,  Landgrave  of  Thuringia,  whom  the  eccle- 
siastical electors,  and  many  bishops,  had  presumed  to  declare 

*  Matthew  Paris.— Turretin.  Compend.        -f-  HEISS'S  History  of  the  Empire,  book 
Hist.  Ecdea.  Seoul,  xiii.  ii.  chap.  xvi. 

147 


75  OF   PIETY  AND   RELIGION. 

BOOK  i.    king  of  the  Romans — but  who  obtained  little  more  by  that 
CHAP,  xir.  eiection,  than  the  ridiculous  title  of  king  of  the  priests. 

I  should  never  have  done,  were  I  to  accumulate  examples ; 
but  those  I  have  already  quoted  are  but  too  many  for  the 
honour  of  humanity.  It  is  an  humiliating  sight  to  behold 
the  excess  of  folly  to  which  superstition  had  reduced  the 
nations  of  Europe  in  those  unhappy  times.* 

§  155.  By  means  of  the  same   spiritual   arms,  the   clergy  drew 

10.  The  every  thing  to  themselves,  usurped  the  authority  of  the  tri- 
bunals,  and  disturbed  the  course  of  justice.  They  claimed 
a  right  to  take  cognisance  of  all  causes  on  account  of  sin,  of 
themselves,  which  (says  Innocent  IH.f)  every  man  of  sense  must  know 
and  disturb-  inat  the  cognisance  belongs  to  our  ministry.  In  the  year 
13??'  the  Prela!es  of  France  had  the  assurance  to  tell  King 
Philip  de  Valois,  that,  to  prevent  causes  of  any  kind  from 
being  brought  before  the  ecclesiastical  courts,  was  depriving 
the  church  of  all  its  rights,  omnia  ecclesiarum  jura  tollere^. 
And  accordingly,  it  was  their  aim  to  have  to  themselves  the 
decision  of  all  disputes.  They  boldly  opposed  the  civil  au- 
thority, and  made  themselves  feared  by  proceeding  in  the 
way  of  excommunication.  It  even  happened  sometimes,  that 
as  dioceses  were  not  always  confined  to  the  extent  of  the 
[  76  ]  political  territory,  a  bishop  would  summon  foreigners  before 
his  tribunal,  for  causes  purely  civil,  and  take  upon  him  to 
decide  them,  in  manifest  violation  of  the  rights  of  nations. 
To  such  a  height  had  the  disorder  arisen  three  or  four  cen- 
turies ago,  that  our  wise  ancestors  thought  themselves  obliged 
to  take  serious  measures  to  put  a  stop  to  it,  and  stipulated, 
in  their  treaties,  that  none  of  the  confederates  should  be  sum- 

*  Sovereigns  were  sometimes  found,  should  acknowledge  him  as  king,  or 
who,  without  considering  future  con-  perform  towards  him  any  of  the  duties 
sequences,  favoured  the  papal  en-  of  a  subject.  He  then  offered  Arragon 
croachments  when  they  were  likely  and  Catalonia  to  the  Count  de  Valois, 
to  prove  advantageous  to  their  own  second  son  of  Philip  the  Bold,  on  con- 
interests.  Thus,  Louis  VIII.,  king  dition  that  he  and  his  successors  should 
of  France,  wishing  to  invade  the  terri-  acknowledge  themselves  vassals  of  the 
tories  of  the  Count  of  Toulouse,  under  holy  see,  take  an  oath  of  fealty  to  the 
pretence  of  making  war  on  the  Albi-  pope,  and  pay  him  a  yearly  tribute, 
genses,  requested  of  the  pope,  among  The  king  of  France  assembled  the 
other  things,  "  that  he  would  issue  a  barons  and  prelates  of  his  kingdom,  to 
bull  declaring  that  the  two  Raymonds,  deliberate  on  the  pope's  offer,  and  they 
father  and  son,  together  with  all  their  advised  him  to  accept  of  it.  "  Strange 
adherents,  associates,  and  allies,  had  blindness  of  kings  and  their  counsel- 
been  and  were  deprived  of  all  their  lors !"  exclaims,  with  good  reason,  a 
possessions."  VELLY'S  Hist,  of  France,  modern  historian ;  "  they  did  not  per- 
vol.  iv.  p.  33.  Of  a  similar  nature  to  ceive,  that,  by  thus  accepting  king- 
the  preceding  is  the  following  remark-  doms  from  the  hands  of  the  pope,  they 
able  fact: — Pope  Martin  IV.  excom-  strengthened  and  established  his  pre- 
municated  Peter,  king  of  Arragon,  tensions  to  the  right  of  deposing  thera- 
declared  that  he  had  forfeited  his  king-  selves."  VELLY'S  History  of  France, 
dom,  all  his  lands,  and  even  the  regal  vol.  vi.  p.  190. 
dignity,  and  pronounced  his  subjects  f  In  cap.  Novit.  de  Judicis. 
absolved  from  their  oath  of  allegiance.  j  See  Leibnitii  Codex,  Juris  Gent. 
He  even  excommunicated  all  who  Diplomat.  Dipl.  LXVII.  g  9.  • 
148 


OF   PIETY  AND   RELIGION.  76 

moned  before  spiritual  courts,  for  money  debts,  since  every    BOOK  i. 
one  ought  to  be  contented  with  the  ordinary  modes  of  justice  CHAP-  xir-.. 
that  were  observed  in  the  country.*     We  find  in  history,  that 
the  Swiss  on  many  occasions  repressed  the  encroachments  of 
the  bishops  and  their  judges. 

Over  every  affair  of  life  they  extended  their  authority, 
under  pretence  that  conscience  was  concerned.  They  obliged 
new-married  husbands  to  purchase  permission  to  lie  with  their 
wives  the  first  three  nights  after  marriage.f 

This  burlesque  invention  leads  us  to  remark  another  abuse,  §  156. 
manifestly  contrary  to  the  rules  of  a  wise  policy,  and  to  the  V1*   Money 
duty  a  nation  owes  to  herself;  I  mean  the  immense  su 
which  bulls,  dispensations,  &c.,  annually  drew  to  Rome,  from 
all  the  countries  in  communion  with  her.     How  much  might 
be  said  on  the  scandalous  trade  of  indulgences  !  but  it  at  last 
became  ruinous  to  the  court  of  Rome,  which,  by  endeavour- 
ing to  gain  too  much,  suffered  irreparable  losses. 

Finally,  that  independent  authority  intrusted  to  ecclesi-  g  157. 
astics,  who  were  often  incapable  of  understanding  the  true  !2.  L 
maxims  of  government,  or  too  careless  to  take  the  trouble  of  and 
studying  them,  and  whose  minds  were  wholly  occupied  by  a  ^  welfare 
visionary  fanaticism,  by  empty  speculations,  and  notions  of  of  states. 
a  chimerical  and  overstrained  purity, — that  authority,  I  say, 
produced,  under  the  pretence  of  sanctity,  laws  and  customs 
that  were  pernicious  to  the  state.  Some  of  these  we  have 
noticed;  but  a  very  remarkable  instance  is  mentioned  by 
Grotius.  "  In  the  ancient  Greek  church,"  says  he,  "  was 
long  observed  a  canon,  by  which  those  who  had  killed  an 
enemy  in  any  war  whatsoever  were  excommunicated  for  three 
years  :"J  a  fine  reward  decreed  for  the  heroes  who  defended 
their  country,  instead  of  the  crowns  and  triumphs  with  which 
pagan  Rome  had  been  accustomed  to  honour  them  !  Pagan 
Rome  became  mistress  of  the  world  ;  she  adorned  her  bravest 
warriors  with  crowns.  The  empire,  having  embraced  Chris- 
tianity, soon  became  a  prey  to  barbarians ;  her  subjects,  by 
defending  her,  incurred  the  penalty  of  a  degrading  excom- 
munication. By  devoting  themselves  to  an  idle  life,  they 
thought  themselves  pursuing  the  path  to  heaven,  and  actually 
found  themselves  in  the  high  road  to  riches  and  greatness. 

*  Ibid.    Alliance  of  Zurich  with  the  upon ;  they  would  have  made  no  great 

•antons  of  Uri,  Schweitz,   and  Under-  profit  of  any  other, 
wald,  dated  May  1,  1351,  §  7.  J  De  Jure  Belli  et  Pacts,  lib.  ii.  cap. 

f  See  A  Regulation  of  Parliament  in  xxiv.     He  quotes  Basil  ad  Amphiloch. 

•re  arret  of  March  19,  1409.     Spirit  of  x.  13.     Zonarca*  in  Niceph.  Phoc.  vol. 

Laws.     These  (says  Montesquieu)  were  iii. 
the  very  best  nights  they  could  pitch 

ii  2  149 


TT 


OF  JUSTICE  AND   POLITY. 


BOOK  I. 
CHAP.  XIH. 


to  make 

justice 

reign. 


CHAP.  XIII. 

OF  JUSTICE   AND    POLITY. 

g  158.  A  na-  NEXT  to  the  care  of  religion,  one  of  the  principal  duties 
tion  ought  Of  a  nation  relates  to  justice:  They  ought  to  employ  their 
utmost  attention  in  causing  it  to  prevail  in  the  state,  and  to 
take  proper  measures  for  having  it  dispensed  to  every  one  in 
the  most  certain,  the  most  speedy,  and  the  least  burdensome 
manner.  This  obligation  flows  from  the  object  proposed  by 
uniting  in  civil  society,  and  from  the  social  compact  itself. 
We  have  seen  (§  15),  that  men  have  bound  themselves  by  the 
engagements  of  society,  and  consented  to  divest  themselves, 
in  its  favour,  of  a  part  of  their  natural  liberty,  only  with  a 
view  of  peaceably  enjoying  what  belongs  to  them,  and  ob- 
taining justice  with  certainty.  The  nation  would  therefore 
neglect  her  duty  to  herself,  and  deceive  the  individuals,  if 
she  did  not  seriously  endeavour  to  make  the  strictest  justice 
prevail.  This  attention  she  owes  to  her  own  happiness,  re- 
pose, and  prosperity.  Confusion,  disorder,  and  despondency 
will  soon  arise  in  a  state,  when  the  citizens  are  not  sure  of 
easily  and  speedily  obtaining  justice  in  all  their  disputes ; 
without  this,  the  civil  virtues  will  become  extinguished,  and 
the  society  weakened. 

There  are  two  methods  of  making  justice  flourish — good 
laws,  and  the  attention  of  the  superiors  to  see  them  executed. 
In  treating  of  the  constitution  of  a  state  (Chap.  III.),  we 
have  already  shown  that  a  nation  ought  to  establish  just  and 
wise  laws,  and  have  also  pointed  out  the  reasons  why  we  can- 
not here  enter  into  the  particulars  of  those  laws.  If  men 
were  always  equally  just,  equitable,  and  enlightened,  the 
laws  of  nature  would  doubtless  be  sufficient  for  society.  But 
ignorance,  the  illusions  of  self-love,  and  the  violence  of  the 
passions,  too  often  render  these  sacred  laws  ineffectual.  And 
we  see,  in  consequence,  that  all  well-governed  nations  have 
perceived  the  necessity  of  enacting  positive  laws.  There  is 
a  necessity  for  general  and  formal  regulations,  that  each  may 
clearly  know  his  own  rights,  without  being  misled  by  self- 
deception.  Sometimes  even  it  is  necessary  to  deviate  from 
natural  equity,  in  order  to  prevent  abuses  and  frauds,  and  to 
accommodate  ourselves  to  circumstances ;  and,  since  the  sen- 
sation of  duty  has  frequently  so  little  influence  on  the  heart 
of  man,  a  penal  sanction  becomes  necessary,  to  give  the  laws 
their  full  efficacy.  Thus  is  the  law  of  nature  converted  into 
civil  law.*  It  would  be  dangerous  to  commit  the  interests 
of  the  citizens  to  the  mere  discretion  of  those  who  are  to  dis- 


§159.    To 
establish 
good  laws. 


*  See  a  dissertation  on  this  subject,  in  the  Loiair  Philosophique,  p.  71. 
150 


BOOK    I. 
CHAP.    Xn 


OF  JUSTICE   AND    POLITY.  77 

pense  justice.  The  legislator  should  assist  the  understanding 
of  the  judges,  force  their  prejudices  and  inclinations,  and  sub- 
due their  will,  by  simple,  fixed,  and  certain  rules.  These, 
again,  are  the  civil  laws.  [  78  ] 

The  best  laws  are  useless,  if  they  be  not  observed.     The  §  ico.    TO 
nation  ought  then  to  take  pains  to  support  them,  and  to  cause  enforce 
them  to  be  respected  and  punctually  executed  :  with  this  view  *  em* 
she  cannot  adopt  measures  too  just,  too  extensive,  or  too  ef- 
fectual ;  for  hence,  in  a  great  degree,  depend  her  happiness, 
glory,  and  tranquillity. 

We  have  already  observed  (§  41)  that  the  sovereign,  who  §  iei. 
represents  a  nation  and  is  invested  with  its  authority,  is  also  Functions 
charged  with  its  duties.     An  attention  to  make  justice  flourish  ™  J^f'^ 
in  the  state  must  then  be  one  of  the  principal  functions  of  the  °n  th^P™°* 
prince  ;  and  nothing  can  be  more  worthy  of  the  sovereign  speck 
majesty.     The  emperor  Justinian  thus  begins  his  book  of  the 
Institutes  :  Imperatoriam  majcstatem  non  solum  armis  deco- 
ratam,  sed  etiam  legibus  oportet  esse  armatam,  ut  utrumque 
tcmpus,  et  bellorum  et  pads,  recte  possit  gubernari.     The  de- 
gree of  power  intrusted  by  the  nation  to  the  head  of  the  state, 
is  then  the  rule  of  his  duties  and  his  functions  in  the  admin- 
istration of  justice.     As  the  nation  may  either  reserve  the 
legislative  power  to  itself,  or  intrust  it  to  a  select  body,  —  it 
has  also  a  right,  if  it  thinks  proper,  to.  establish  a  supreme 
tribunal  to  judge  of  all  disputes,  independently  of  the  prince. 
But  the  conductor  of  the  state  must  naturally  have  a  consid- 
erable share  in  legislation,  and  it  may  even  be  entirely  intrusted 
to  him.     In  this  last  case,  it  is  he  who  must  establish  salutary 
laws,  dictated  by  wisdom  and  equity  :    but  in  all  cases,  he 
should  be  the  guardian  of  the  law  ;  he  should  watch  over  those 
who  are  invested  with  authority,  and  confine  each  individual 
within  the  bounds  of  duty. 

The  executive  power  naturally  belongs  to  the  sovereign,  g  162.   How 
—  to  every  conductor  of  a  people  :  he  is  supposed  to  be  in-  he  is  to 
vested  with  it,  in  its  fullest  extent,  when  the  fundamental  ?jjjf"e 
laws  do  not  restrict  it.     When  the  laws  are  established,  it  JUS 
is  the  prince's  province  to  have  them  put  in  execution.     To 
support  them  with  vigour,  and  to  make  a  just  application  of 
them  to  all  cases  that  present  themselves,  is  what  we  call 
rendering  justice.     And  this  is  the  duty  of  the  sovereign, 
who  is  naturally  the  judge  of  his  people.     We  have  seen  the 
chiefs  of  some  small  states  perform  these  functions  themselves  : 
but  this  custom  becomes  inconvenient,  and  even  impossible  in 
a  great  kingdom. 

The  best  and  safest  method  of  distributing  justice  is  by  §  163.   He 
establishing   judges,    distinguished   by   their   integrity   andoush.tto 
knowledge,  to  take  cognisance  of  all  the  disputes  that  mayJJJ^J11" 
arise  between  the  citizens.     It  is  impossible  for  the  prince  to  and  upright 
take  upon  himself  this  painful  task  :  he  cannot  spare  sufficient  judges. 
time  either  for  the  thorough  investigation  of  all  causes,  or 


151 


78  OF   JUSTICE   AND   POLITY. 

BOOK  i.  even  for  the  acquisition  of  the  knowledge  necessary  to  decide 
CHAP,  xm.  them>  As  the  sovereign  cannot  personally  discharge  all  the 
functions  of  government,  he  should,  with  a  just  discernment, 
reserve  to  himself  such  as  he  can  successfully  perform,  and 
are  of  most  importance, — intrusting  the  others  to  officers  and 
magistrates  who  shall  execute  them  under  his  authority. 
There  is  no  inconvenience  in  trusting  the  decision  of  a  law- 
[  79  ]  suit  to  a  body  of  prudent,  honest,  and  enlightened  men  : — on 
the  contrary  it  is  the  best  mode  the  prince  can  possibly  adopt ; 
and  he  fully  acquits  himself  of  the  duty  he  owes  to  his  people 
in  this  particular,  when  he  gives  them  judges  adorned  with 
all  the  qualities  suitable  to  ministers  of  justice :  he  has  then 
nothing  more  to  do  but  to  watch  over  their  conduct,  in  order 
that  they  may  not  neglect  their  duty. 

§  164.   The      The  establishment  of  courts  of  justice  is  particularly  ne- 
ordinary      cessary  for  the  decision  of  all  fiscal  causes, — that  is  to  say, 
T^id  d      a^  *^e  Disputes  ^at  may  arise  between  the  subjects  on  the 
termine  "    one  hand,  and,  on  the  other,  the  persons  who  exert  the  pro- 
causes  re-     fitable  prerogatives  of  the  prince.     It  would  be  very  unbe- 
lating  to  the  coming,  and  highly  improper  for  a  prince,  to  take  upon  him 
revenue.       ^0  gjve  ju^gment  in  his  own  cause : — he  cannot  be  too  much 
on  his  guard  against  the  illusions  of  interest  and  self-love ; 
and  even  though  he  were  capable  of  resisting  their  influence, 
still  he  ought  not  to  expose  his  character  to  the  rash  judg- 
ments of  the  multitude.     These  important  reasons  ought  even 
to  prevent  his  submitting  the  decision  of  causes  in  which  he 
is  concerned,  to  the  ministers  and  counsellors  particularly  at- 
tached to  his  person.     In  all  well-regulated  states,  in  coun- 
tries that  are  really  states,  and  not  the  dominions  of  a  despot, 
the  ordinary  tribunals  decide  all  causes  in  which  the  sovereign 
is  a  party,  with  as  much  freedom  as  those  between  private 
persons. 

1 165.  The  end  of  all  trials  at  law  is  justly  to  determine  the  dis- 

There  ought  putes  that  arise  between  the  citizens.     If,  therefore,  suits  are 
to  be  esta-    prosecuted  before  an  inferior  judge,  who  examines  all  the  cir- 

blished  su-    r  *.        i    . •  ,1  •.     • 

preme  cumstances  and  proofs  relating  to  them,  it  is  very  proper, 
courts  of  that,  for  the  greater  safety,  the  party  condemned  should  be 
justice  allowed  to  appeal  to  a  superior  tribunal,  where  the  sentence 
wherem  Of  tne  former  judge  may  be  examined,  and  reversed,  if  it  ap- 
Bhouid  be  Pear  *°  he  ill-founded.  But  it  is  necessary  that  this  supreme 
finally  de-  tribunal  should  have  the  authority  of  pronouncing  a  definitive 
termined.  sentence  without  appeal :  otherwise  the  whole  proceeding  will 
be  vain,  and  the  dispute  can  never  be  determined. 

The  custom  of  having  recourse  to  the  prince  himself,  by 
laying  a  complaint  at  the  foot  of  the  throne,  when  the  cause 
has  been  finally  determined  by  a  supreme  court,  appears  to  be 
subject  to  very  great  inconveniences.  It  is  more  easy  to  deceive 
the  prince  by  specious  reasons,  than  a  number  of  magistrates 
well  skilled  in  the  knowledge  of  the  laws ;  and  experience  too 
plainly  shows  what  powerful  resources  are  derived  from  favour 

152 


OF  JUSTICE   AND    POLITY.  IV 

and  intrigue  in  the  courts  of  kings.  If  this  practice  he  autho-  BOOK  r. 
rized  by  the  laws  of  the  state,  the  prince  ought  always  to  fear  CHAP-  xm- 
that  these  complaints  are  only  formed  with  a  view  of  protract- 
ing a  suit,  and  procrastinating  a  just  condemnation.  A  just 
and  wise  sovereign  will  not  admit  them  without  great  caution ; 
and  if  he  reverses  the  sentence  that  is  complained  of,  he  ought 
not  to  try  the  cause  himself,  but  submit  it  to  the  examination 
of  another  tribunal,  as  is  the  practice  in  France.  The  ruin- 
ous length  of  these  proceedings  authorizes  us  to  say  that  it  is  [  80  ] 
more  convenient  and  advantageous  to  the  state,  to  establish  a 
sovereign  tribunal,  whose  definitive  decrees  should  not  be  sub- 
ject to  a  reversal  even  by  the  prince  himself.  It  is  sufficient 
for  the  security  of  justice  that  the  sovereign  keep  a  watchful 
eye  over  the  judges  and  magistrates,  in  the  same  manner  as 
he  is  bound  to  watch  all  the  other  officers  in  the  state, — and 
that  he  have  power  to  call  to  an  account  and  to  punish  such 
as  are  guilty  of  prevarication. 

When  once  this  sovereign  tribunal  is  established,  the  prince  ?  166.   The 
cannot  meddle  with  its  decrees ;  and,  in  general,  he  is  abso-  Prince 
lutely  obliged  to  preserve  and  maintain  the  forms  of  justice.  °"fse^g  ^ 
Every  attempt  to  violate  them  is  an  assumption  of  arbitrary  forms  Of 
power,  to  which  it  cannot  be  presumed  that  any  nation  could  justice, 
ever  have  intended  to  subject  itself. 

When  those  forms  are  defective,  it  is  the  business  of  the 
legislator  to  reform  them.  This  being  done  or  procured  in  a 
manner  agreeable  to  the  fundamental  laws,  will  be  one  of  the 
most  salutary  benefits  the  sovereign  can  bestow  upon  his  peo- 
ple. To  preserve  the  citizens  from  the  danger  of  ruining 
themselves  in  defending  their  rights, — to  repress  and  destroy 
that  monster,  chicanery, — will  be  an  action  more  glorious  in 
the  eyes  of  the  wise  man,  than  all  the  exploits  of  a  conqueror. 

Justice  is  administered  in  the  name  of  the  sovereign  ;  the  g  167.   The 
prince  relies  on  the  judgment  of  the  courts,  and,  with  good  prince 
reason,  looks  upon  their  decisions  as  sound  law  and  justice. ougbt  to . 
His  part  in  this  branch  of  the  government  is  then  to  maintain  authority  of 
the  authority  of  the  judges,  and  to  cause  their  sentences  to  the  judges, 
be  executed ;  without  which  they  would  be  vain  and  delusive ; 
for  justice  would  not  be  rendered  to  the  citizens. 

There  is  another  kind  of  justice  named  attributive  or  distri-$U8.   Of 
butive,  which  in  general  consists  in  treating  everyone  accord- distributive 
ing  to  his  deserts.     This  virtue  ought  to  regulate  the  distribu-J^lcd®'stri_ 
tion  of  public  employments,  honours,  and  rewards  in  a  state,  bution  of 
It  is,  in  the  first  place,  a  duty  the  nation  owes  to  herself,  to  employ- 
encourage  good  citizens,  to  excite  every  one  to  virtue  by  hon- ments  and 
ours  and  rewards,  and  to  intrust  with  employments  such  per- rewards> 
sons  only  as  are  capable  of  properly  discharging  them.     In 
the  next  place,  it  is  a  duty  the  nation  owes  to  individuals,  to 
show  herself  duly  attentive  to  reward  and  honour  merit.     Al- 
though a  sovereign  has  the  power  of  distributing  his  favours 
and  employments  to  whomsoever  he  pleases,  and  nobody  has  a 
20  153 


80  OF   JUSTICE   AND    POLITY. 

SOOK  i.  perfect  right  to  any  post  or  dignity, — yet  a  man  who  by  in- 
CHAP.  xin.  j.enge  appiication  has  qualified  himself  to  become  useful  to  his 
country,  and  he  who  has  rendered  some  signal  service  to  the 
state,  may  justly  complain  if  the  prince  overlooks  them,  in 
order  to  advance  useless  men  without  merit.  This  is  treating 
them  with  an  ingratitude  that  is  wholly  unjustifiable,  and 
adapted  only  to  extinguish  emulation.  There  is  hardly  any 
fault  that  in  the  course  of  time  can  become  more  prejudicial 
to  a  state  :  it  introduces  into  it  a  general  relaxation  ;  and  its 
public  affairs,  being  managed  by  incompetent  hands,  cannot 
[  81  ]  fail  to  be  attended  with  ill-success.  A  powerful  state  may 
support  itself  for  some  time  by  its  own  weight ;  but  at  length 
it  falls  into  decay ;  and  this  is  perhaps  one  of  the  principal 
causes  of  those  revolutions  observable  in  great  empires.  The 
sovereign  is  attentive  to  the  choice  of  those  he  employs,  while 
he  feels  himself  obliged  to  watch  over  his  own  safety,  and  to 
be  on  his  guard :  but  when  once  he  thinks  himself  elevated  to 
such  a  pitch  of  greatness  and  power  as  leaves  him  nothing  to 
fear,  he  follows  his  own  caprice,  and  all  public  offices  are  dis- 
tributed by  favour. 

g  169.  Pun-      The  punishment  of  trangressors  commonly  belongs  to  dis- 
ishment  of   tributive  justice,  of  which  it  is  really  a  breach ;  since  good 
^•ansgres-     or(|er  requ}res  that  malefactors  should  be  made  to  suffer  the 
punishments  they  have  deserved.     But,  if  we  would  clearly 
establish  this  on  its  true  foundations,  we  must  recur  to  first 
Foundation  principies.     The  right  of  punishing,  which  in  a  state  of  nature 
of  punish-    Belongs  to  each  individual,  is  founded  on  the  right  of  personal 
ing.  safety.     Every  man  has  a  right  to  preserve  himself  from  in- 

jury, and  by  force  to  provide  for  his  own  security  against 
those  who  unjustly  attack  him.  For  this  purpose  he  may, 
when  injured,  inflict  a  punishment  on  the  aggressor,  as  well 
with  the  view  of  putting  it  out  of  his  power  to  injure  him  for 
the  future,  or  of  reforming  him,  as  of  restraining,  by  his  ex- 
ample, all  those  who  might  be  tempted  to  imitate  him.  Now, 
when  men  unite  in  society, — as  the  society  is  thenceforward 
charged  with  the  duty  of  providing  for  the  safety  of  its  mem- 
bers, the  individuals  all  resign  to  it  their  private  right  of  pun- 
ishing. To  the  whole  body,  therefore,  it  belongs  to  avenge 
private  injuries,  while  it  protects  the  citizens  at  large.  And 
as  it  is  a  moral  person,  capable  also  of  being  injured,  it  has  a 
right  to  provide  for  its  own  safety,  by  punishing  those  who 
trespass  against  it ; — that  is  to  say,  it  has  a  right  to  punish 
public  delinquents.  Hence  arises  the  right  of  the  sword,  which 
belongs  to  a  nation,  or  to  its  conductor.  When  the  society  use 
it  against  another  nation,  they  make  war ;  when  they  exert  it 
in  punishing  an  individual,  they  exercise  vindictive  justice. 
Two  things  are  to  be  considered  in  this  part  of  government, 
— the  laws,  and  their  execution. 

2 170.  Crf-       It  would  be  dangerous  to  leave  the  punishment  of  transgres- 
minai  laws.  sors  entirely  to  the  discretion  of  those  who  are  invested  with 

154 


OF   JUSTICE   AND    POLITY.  81 

authority.     The  passions  might  interfere  in  a  business  which     BOOK  T- 

ought  to  be  regulated  only  by  justice  and  wisdom.     The  pun '- 

ishment  pre-ordained  for  an  evil  action,  lays  a  more  effectual 
restraint  on  the  wicked  than  a  vague  fear,  in  which  they  may 
deceive  themselves.  In  short,  the  people,  who  are  commonly 
moved  at  the  sight  of  a  suffering  wretch,  are  better  convinced 
of  the  justice  of  his  punishment,  when  it  is  inflicted  by  the  laws 
themselves.  Every  well-governed  state  ought  then  to  have  its 
laws  for  the  punishment  of  criminals.  It  belongs  to  the  legisla- 
tive power,  whatever  that  be,  to  establish  them  with  justice  and  . 
wisdom.  But  this  is  not  a  proper  place  for  giving  a  general 
theory  of  them :  we  shall  therefore  only  say  that  each  nation 
ought,  in  this  as  in  every  other  instance,  to  choose  such  laws 
as  may  best  suit  her  peculiar  circumstances. 

We  shall  only  make  one  observation,  which  is  connected  ?  i?i.  De- 
with  the  subject  in  hand,  and  relates  to  the  degree  of  punish-  &r®e  of  Pun- 
ment.  From  the  foundation  even  of  the  right  of  punishing,  1Srmgo'  T 
and  from  the  lawful  end  of  inflicting  penalties,  arises  the  ne-  ^  •* 
cessity  of  keeping  them  within  just  bounds.  Since  they  are 
designed  to  procure  the  safety  of  the  state  and  of  the  citizens, 
they  ought  never  to  be  extended  beyond  what  that  safety  re- 
quires. To  say  that  any  punishment  is  just  since  the  trans- 
gressor knew  before-hand  the  penalty  he  was  about  to  incur, 
is  using  a  barbarous  language,  repugnant  to  humanity,  and  to 
the  law  of  nature,  which  forbids  our  doing  any  ill  to  others, 
unless  they  lay  us  under  the  necessity  of  inflicting  it  in  our 
own  defence  and  for  'our  own  security.  Whenever  then  a 
particular  crime  is  not  much  to  be  feared  in  society,  as  when 
the  opportunities  of  committing  it  are  very  rare,  or  when  the 
subjects  are  not  inclined  to  it,  too  rigorous  punishments  ought 
not  to  be  used  to  suppress  it.  Attention  ought  also  to  be  paid 
to  the  nature  of  the  crime ;  and  the  punishment  should  be 
proportioned  to  the  degree  of  injury  done  to  the  public  tran- 
quillity and  the  safety  of  society,  and  the  wickedness  it  sup- 
poses in  the  criminal. 

These  maxims  are  not  only  dictated  by  justice  and  equity, 
but  also  as  forcibly  recommended  by  prudence  and  the  art 
of  government.  Experience  shows  us  that  the  imagination 
becomes  familiarized  to  objects  which  are  frequently  present- 
ed to  it.  If,  therefore,  terrible  punishments  are  multiplied, 
the  people  will  become  daily  less  affected  by  them,  and  at 
length  contract,  like  the  Japanese,  a  savage  and  ferocious 
character  : — these  bloody  spectacles  will  then  no  longer  pro- 
duce the  effect  designed ;  for  they  will  cease  to  terrify  the 
wicked.  It  is  with  these  examples  as  with  honours : — a  prince 
who  multiplies  titles  and  distinctions  to  excess,  soon  depre- 
ciates them,  and  makes  an  injudicious  use  of  one  of  the  most 
powerful  and  convenient  springs  of  government.  When  we 
recollect  the  practice  of  the  ancient  Romans  with  respect  to 
criminals — when  we  reflect  on  their  scrupulous  attention  to 

155 


82  OF  JUSTICE  AND   POLITY. 

BOOK  i.  spare  the  blood  of  the  citizens, — we  cannot  fail  to  be  struck 
CHAP,  xin.  aj.  seejng  wjt|j  h^  little  ceremony  it  is  now-a-days  shed  in  the 
generality  of  states.  Was  then  the  Roman  republic  but  ill 
governed  ?  Does  better  order  and  greater  security  reign  among 
us? — It  is  not  so  much  the  cruelty  of  the  punishments,  as 
a  strict  punctuality  in  enforcing  the  penal  code,  that  keeps 
mankind  within  the  bounds  of  duty :  and  if  simple  robbery  is 
punished  with  death,  what  further  punishment  is  reserved  to 
check  the  hand  of  the  murderer  ? 

§  172.  EX-  The  execution  of  the  laws  belongs  to  the  conductor  of  the 
ecution  of  state :  he  is  intrusted  with  the  care  of  it,  and  is  indispensably 
the  laws,  obliged  to  discharge  it  with  wisdom.  The  prince  then  is  to 
see  that  the  criminal  laws  be  put  in  execution ;  but  he  is  not 
to  attempt  in  his  own  person  to  try  the  guilty.  Besides  the 
[  83  ]  reasons  we  have  already  alleged  in  treating  of  civil  causes,  and 
which  are  of  still  greater  weight  in  regard  to  those  of  a  crimi- 
nal nature — to  appear  in  the  character  of  a  judge  pronouncing 
sentence  on  a  wretched  criminal,  would  ill  become  the  majesty 
of  the  sovereign,  who  ought  in  every  thing  to  appear  as  the 
father  of  his  people.  It  is  a  very  wise  maxim  commonly  re- 
ceived in  France,  that  the  prince  ought  to  reserve  to  himself 
all  matters  of  favour,  and  leave  it  to  the  magistrates  to  execute 
the  rigour  of  justice.  But  then  justice  ought  to  be  exercised 
in  his  name,  and  under  his  authority.  A  good  prince  will 
keep  a  watchful  eye  over  the  conduct  of  the  magistrates ;  he 
will  oblige  them  to  observe  scrupulously  the  established  forms, 
and  will  himself  take  care  never  to  break  through  them. 
Every  sovereign  who  neglects  or  violates  the  forms  of  justice 
in  the  prosecution  of  criminals,  makes  large  strides  towards 
tyranny ;  and  the  liberty  of  the  citizens  is  at  an  end  when  once 
they  cease  to  be  cei-tain  that  they  cannot  be  condemned,  except 
in  pursuance  of  the  laws,  according  to  the  established  forms, 
and  by  their  ordinary  judges.  The  custom  of  committing  the 
trial  of  the  accused  party  to  commissioners  chosen  at  the  plea- 
sure of  the  court,  was  the  tyrannical  invention  of  some  minis: 
ters  who  abused  the  authority  of  their  master.  By  this  irregu- 
lar and  odious  procedure,  a  famous  minister  always  succeed- 
ed in  destroying  his  enemies.  A  good  prince  will  never  give 
his  consent  to  such  a  proceeding,  if  he  has  sufficient  discern- 
ment to  foresee  the  dreadful  abuse  his  ministers  may  make  of 
it.  If  the  prince  ought  not  to  pass  sentence  himself — for  the 
same  reason,  he  ought  not  to  aggravate  the  sentence  passed 
by  the  judges. 

1 173.  Right  The  very  nature  of  government  requires  that  the  executor 
°nf  J)ardon-  of  the  laws  should  have  the  power  of  dispensing  with  them 
when  this  may  be  done  without  injury  to  any  person,  and  in 
certain  particular  cases  where  the  welfare  of  the  state  requires 
an  exception.  Hence  the  right  of  granting  pardons  is  one  of 
the  attributes  of  sovereignty.  But,  in  his  whole  conduct,  in 
his  severity  as  well  as  his  mercy,  the  sovereign  ought  to  have 

156 


OF   JUSTICE   AND    POLITY.  83 

no  other  object  in  view  than  the  greater  advantage  of  soci-    BOOK  i. 
ety.     A  wise  prince  knows  how  to   reconcile  justice   with  CHAP-  ""• 
clemency — the  care  of  the  public  safety  with  that  pity  which 
is  due  to  the  unfortunate. 

The  internal  police  consists  in  the  attention  of  the  prince  §  174.   in- 
and  magistrates  to  preserve  every  thing  in  order.     Wise  re-  *? rnal  P°- 
gulations  ought  to  prescribe  whatever  will  best  contribute  tollce- 
the  public  safety,  utility,  and  convenience  ;  and  those  who  are 
invested  with  authority  cannot  be  too  attentive  to  enforce  them. 
By  a  wise  police,  the  sovereign  accustoms  the  people  to  order 
and  obedience,  and  preserves  peace,  tranquillity,  and  concord 
among  the  citizens.     The  magistrates  of  Holland  are  said  to 
possess  extraordinary  talents  in  this  respect : — a  better  police 
prevails  in  their  cities,  and  even  their  establishments  in  the 
Indies,  than  in  any  other  places  in  the  known  world.  [  84  ] 

Laws  and  the  authority  of  the  magistrates  having  been  sub-  2  i?5-  Duel» 
stituted  in  the  room  of  private  war,  the  conductors  of  a  nation  or  81"gle 
ought  not  to  suffer  individuals  to  attempt  to  do  themselves  jus-  ?^ 
tice,  when  they  can  have  recourse  to  the  magistrates.    Duelling 
— that  species  of  combat,  in  which  the  parties  engage  on  account 
of  a  private  quarrel — is  a  manifest  disorder,  repugnant  to  the 
ends  of  civil  society.     This  frenzy  was  unknown  to  the  an- 
cient Greeks  and  Romans,  who  raised  to  such  a  height  the 
glory  of  their  arms  :  we  received  it  from  barbarous  nations 
who  knew  no  other  law  but  the  sword.     Louis  XIV.  deserves 
the  greatest  praise  for  his  endeavours  to  abolish  this  savage 
custom. 

But  Avhy  was  not  that  prince  made  sensible  that  the  most  g  176. 
severe  punishments  were  incapable  of  curing  the  rage  for  du-  Means  of 
elling  ?     They  did  not  reach  the  source  of  the  evil ;  and  since  Puttm&  * 
a  ridiculous  prejudice  had  persuaded  all  the  nobility  and  gen-  f  ° 
tlemen  of  the  army,  that  a  man  who  wears  a  sword  is  bound 
in  honour  to  avenge  with  his  own  hand  the  least  injury  he  has 
received  ;  this  is  the  principle  on  which  it  is  proper  to  proceed. 
We  must  destroy  this  prejudice,  or  restrain  it  by  a  motive  of 
the  same  nature.     While  a  nobleman,  by  obeying  the  law, 
shall  be  regarded  by  his  equals  as  a  coward  and  as  a  man  dis- 
honoured— while  an  officer  in  the  same  case  shall  be  forced  to 
quit  the  service — can  you  hinder  his  fighting  by  threatening 
him  with  death  ?     On  the  contrary,  he  will  place  a  part  of  his 
bravery  in  doubly  exposing  his  life  in  order  to  wash  away  the 
affront.     And,  certainly,  while  the  prejudice  subsists,  while  a 
nobleman  or  an  officer  cannot  act  in  opposition  to  it,  without 
embittering  the  rest  of  his  life,  I  do  not  know  whether  we  can 
justly  punish  him  who  is  forced  to  submit  to  his  tyranny,  or 
whether  he  be  very  guilty  with  respect  to  morality.     That 

(54)  As  to  the  legal  view  of  the  of-    Aid.   462 ;    and  Burn's    J.   26   ed.   tit- 
fence  of  duelling  in  England,  see  6  East    "  Duelling." 
Rep.  260 ;  2  East  Rep.  581 ;  2  Barn.  & 

0  157 


84  OF  JUSTICE   AND   POLITY. 

BOOK  i.  worldly  honour,  be  it  as  false  and  chimerical  as  you  please,  is 
CHAP,  xm.  j.Q  fam  a  sukstantial  and  necessary  possession,  since  without 
it  he  can  neither  live  with  his  equals,  nor  exercise  a  profession 
that  is  often  his  only  resource.  When,  therefore,  any  insolent 
fellow  would  unjustly  ravish  from  him  that  chimera  so  esteem- 
ed and  so  necessary,  why  may  he  not  defend  it  as  he  would  his 
life  and  property  against  a  robber  ?  As  the  state  does  not 
permit  an  individual  to  pursue,  with  arms  in  his  hand  the  usur- 
per of  his  property,  because  he  may  obtain  justice  from  the 
magistrate — so,  if  the  sovereign  will  not  allow  him  to  draw  his 
sword  against  the  man  from  whom  he  has  received  an  insult, 
he  ought  necessarily  to  take  such  measures  that  the  patience 
and  obedience  of  the  citizen  who  has  been  insulted  shall  not 
prove  prejudicial  to  him.  Society  cannot  deprive  man  of  his 
natural  right  of  making  war  against  an  aggressor,  without  fur- 
nishing him  with  some  other  means  of  securing  himself  from 
the  evil  his  enemy  would  do  him.  On  all  those  occasions 
where  the  public  authority  cannot  lend  us  its  assistance,  we 
resume  our  original  and  natural  right  of  self-defence.  Thus 
a  traveller  may,  without  hesitation,  kill  the  robber  who  at- 
r  85  1  tacks  him  on  the  highway ;  because  it  would,  at  that  moment, 
be  in  vain  for  him  to  implore  the  protection  of  the  laws  and 
of  the  magistrate.  Thus  a  chaste  virgin  would  be  praised  for 
taking  away  the  life  of  a  brutal  ravisher  who  attempted  to 
force  her  to  his  desires. 

Till  men  have  got  rid  of  this  Gothic  idea,  that  honour  obliges 
them,  even  in  contempt  of  the  laws,  to  avenge  their  per- 
sonal injuries  with  their  own  hands,  the  most  effectual  method 
of  putting  a  stop  to  the  effects  of  this  prejudice  would  perhaps 
be  to  make  a  total  distinction  between  the  offended  and  the 
aggressor — to  pardon  the  former  without  difficulty,  when  it 
appears  that  his  honour  has  been  really  attacked — and  to  ex- 
ercise justice  without  mercy  on  the  party  who  has  committed 
the  outrage.  And  as  to  those  who  draw  the  sword  for  trifles 
and  punctilios,  for  little  piques,  or  railleries  in  which  honour 
is  not  concerned,  I  would  have  them  severely  punished.  By 
this  means  a  restraint  would  be  put  on  those  peevish  and  in- 
solent folks  who  often  reduce  even  the  moderate  men  to  a 
necessity  of  chastising  them.  Every  one  would  be  on  his 
guard,  to  avoid  being  considered  as  the  aggressor ;  and  with 
a  view  to  gain  the  advantage  of  engaging  in  duel  (if  un- 
avoidable) without  incurring  the  penalties  of  the  law,  both 
parties  would  curb  their  passions ;  by  which  means  the 
quarrel  would  fall  of  itself,  and  be  attended  with  no  con- 
sequences. It  frequently  happens  that  a  bully  is  at  bottom 
a  coward ;  he  gives  himself  haughty  airs,  and  offers  insult,  in 
hopes  that  the  rigour  of  the  law  will  oblige  people  to  put  up 
with  his  insolence.  And  what  is  the  consequence  ? — A  man 
of  spirit  will  run  every  risk,  rather  than  submit  to  be  insult- 
ed :  the  aggressor  dares  not  recede :  and  a  combat  ensues, 

158 


OF  JUSTICE   AND   POLITY.  85 


•which  would  not  have  taken  place,  if  the  latter  could  have    BOOK  *• 
once  imagined  that  there  was  nothing  to  prevent  the  other  °HAP'  XI"' 
from  chastising  him  for  his  presumption — the  offended  per- 
son being  acquitted  by  the  same  law  that  condemns  the  ag- 
gressor. 

To  this  first  law,  whose  efficacy  would,  I  doubt  not,  be  soon 
proved  by  experience,  it  would  be  proper  to  add  the  following 
regulations : — 1.  Since  it  is  an  established  custom  that  the 
nobility  and  military  men  should  appear  armed,  even  in  time 
of  peace,  care  should  be  taken  to  enforce  a  rigid  observance  of 
the  laws  which  allow  the  privilege  of  wearing  swords  to  these 
two  orders  of  men  only.  2.  It  would  be  proper  to  establish 
a  particular  court,  to  determine,  in  a  summary  manner,  all 
affairs  of  honour  between  persons  of  these  two  orders.  The 
marshals'  court  in  France  is  in  possession  of  this  power ;  and 
it  might  be  invested  with  it  in  a  more  formal  manner  and  to 
a  greater  extent.  The  governors  of  provinces  and  strong 
places,  with  their  general  officers — the  colonels  and  captains  of 
each  regiment — might,  in  this  particular,  act  as  deputies  to 
the  marshals.  These  courts,  each  in  his  own  department, 
should  alone  confer  the  right  of  wearing  a  sword.  Every  no- 
bleman at  sixteen  or  eighteen  years  of  age,  and  every  soldier 
at  his  entrance  into  the  regiment,  should  be  obliged  to  appear 
before  the  court  to  receive  the  sword.  3.  On  its  being  there  [  86  ] 
delivered  to  him,  he  should  be  informed  that  it  is  intrusted  to 
him  only  for  the  defence  of  his  country ;  and  care  might  be 
taken  to  inspire  him  with  true  ideas  of  honour.  4.  It  appears 
to  me  of  great  importance  to  establish,  for  different  cases,  pun- 
ishments of  a  different  nature.  Whoever  should  so  far  forget 
himself,  as,  either  by  word  or  deed,  to  insult  a  man  who  wears 
a  sword,  might  be  degraded  from  the  rank  of  nobility,  deprived 
of  the  privilege  of  carrying  arms,  and  subjected  to  corporal 
punishment — even  the  punishment  of  death,  according  to  the 
grossness  of  the  insult :  and,  as  I  before  observed,  no  favour 
should  be  shown  to  the  offender  in  case  a  duel  was  the  conse- 
quence, while  at  the  same  time  the  other  party  should  stand 
fully  acquitted.  Those  who  fight  on  slight  occasions,  I  would 
not  have  condemned  to  death,  unless  in  such  cases  where  the 
author  of  the  quarrel — he,  I  mean,  who  carried  it  so  far  as  to 
draw  his  sword,  or  to  give  the  challenge — has  killed  his  ad- 
versary. People  hope  to  escape  punishment  when  it  is  too 
severe  ;  and,  besides,  a  capital  punishment  in  such  cases  is  not 
considered  as  infamous.  But  let  them  be  ignominiously  de- 
graded from  the  rank  of  nobility  and  the  use  of  arms,  and  for 
ever  deprived  of  the  right  of  wearing  a  sword,  without  the  least 
hope  of  pardon :  this  would  be  the  most  proper  method  to  re- 
strain men  of  spirit,  provided  that  due  care  was  taken  to  make 
a  distinction  between  different  offenders,  according  to  the  de- 
gree of  the  offence.  As  to  persons  below  the  rank  of  nobility, 
and  who  do  not  belong  to  the  army,  their  quarrels  should  be 

159 


86  THIRD  OBJECT  OF  A  GOOD  GOVERNMENT,  DEFENCE. 

BOOK  i.  ieft  to  the  cognisance  of  the  ordinary  courts,  which  in  case  of 
CHAP.  xiir.  bioo^ghg^  should  punish  the  offenders  according  to  the  com- 
mon laws  against  violence  and  murder.  It  should  be  the  same 
with  respect  to  any  quarrel  that  might  arise  between  a  com- 
moner and  a  man  entitled  to  carry  arms  :  it  is  the  business  of 
the  ordinary  magistrate  to  preserve  order  and  peace  between 
those  two  classes  of  men,  who  cannot  have  any  points  of  hon- 
our to  settle  the  one  with  the  other.  To  protect  the  people 
against  the  violence  of  those'  who  wear  the  sword,  and  to 
punish  the  former  severely  if  they  should  dare  to  insult  the 
latter,  should  further  be,  as  it  is  at  present,  the  business  of 
the  magistrate. 

I  am  sanguine  enough  to  believe  that  these  regulations,  and 
this  method  of  proceeding,  if  strictly  adhered  to,  would  extir- 
pate that  monster,  duelling,  which  the  most  severe  laws  have 
been  unable  to  restrain.  They  go  to  the  source  of  the  evil,  by 
preventing  quarrels,  and  oppose  a  lively  sensation  of  true  and 
real  honour  to  that  false  and  punctilious  honour  which  occa- 
sions the  spilling  of  so  much  blood.  It  would  be  worthy  a 
great  monarch  to  make  a  trial  of  it :  its  success  would  immor- 
talize his  name :  and  by  the  bare  attempt  he  would  merit  the 
love  and  gratitude  of  his  people. 


[  8T  ]  CHAP.  XIV. 

CHAP.  XIY.  THE    THIRD    OBJECT    OF   A   GOOD    GOVERNMENT,  —  TO    FORTIFY 
ITSELF  AGAINST   EXTERNAL   ATTACKS. 

?  177.  A  na-  WE  have  treated  at  large  of  what  relates  to  the  felicity  of 
tion  ought  a  nation  :  the  subject  is  equally  copious  and  complicated. 
-^e^  us  now  proceed  to  a  third  division  of  the  duties  which  a 


external  at-  naton  owes  to  itself,  —  a  third  object  of  good  government.  One 
tacks.  of  the  ends  of  political  society  is  to  defend  itself  with  its  com- 
bined strength  against  all  external  insult  or  violence  (§  15). 
If  the  society  is  not  in  a  condition  to  repulse  an  aggressor,  it 
is  very  imperfect,  —  it  is  unequal  to  the  principal  object  of  its 
destination,  and  cannot  long  subsist.  The  nation  ought  to 
put  itself  in  such  a  state  as  to  be  able  to  repel  and  humble  an 
unjust  enemy  :  this  is  an  important  duty,  which  the  care  of 
its  own  perfection,  and  even  of  its  preservation,  imposes  both 
on  the  state  and  its  conductor. 

§  178.   Na-      It  is  its  strength  alone  that  can  enable  a  nation  to  repulse 

tionai          all  aggressors,  to  secure  its  rights,  and  render  itself  every- 

strength.      wnere  respectable.     It  is  called  upon  by  every  possible  motive 

to  neglect  no  circumstance  that  can  tend  to  place  it  in  this 

happy  situation.     The  strength  of  a  state  consists  in  three 

things,  —  the  number  of  the  citizens,  their  military  virtues,  and 

160 


THIRD  OBJECT  OF  A  GOOD  GOVERNMENT,  DEFENCE.  87 


AP.    XIV. 


their  riches.     Under  this  last  article  we  may  comprehend  fort-    _BOOK 
resses,   artillery,  arms,  horses,  ammunition,  and,  in  general,-" 
all  that  immense  apparatus  at  present  necessary  in  war,  since 
they  can  all  be  procured  with  money. 

To  increase  the  number  of  the  citizens  as  far  as  it  is  pos-  ? 179-    In- 
sible  or  convenient,  is  then  one  of  the  first  objects  that  claim  c™ase  °.f 
the  attentive  care  of  the  state  or  its  conductor :  and  this  will  be  F^"  a 
successfully  effected  by  complying  with  the  obligation  to  procure 
the  country  a  plenty  of  the  necessaries  of  life, — by  enabling 
the  people  to  support  their  families  with  the  fruits  of  their 
labour, — by  giving  proper  directions  that  the  poorer  classes, 
and  especially  the  husbandmen,  be  not  harassed  and  oppressed 
by  the  levying  of  taxes, — by  governing  with  mildness,  and 
in  a  manner  which,  instead  of  disgusting  and  dispersing  the 
present  subjects  of  the  state,  shall  rather  attract  new  ones, — 
and,  finally,   by  encouraging   marriage,   after   the   example 
of  the  Romans.     That  nation,  so  attentive  to  every  thing 
capable   of    increasing   and   supporting   their   power,  made 
wise  laws  against  celibacy  (as  we  have  already  observed  in 
§  149),  and  granted  privileges  and  exemptions  to  married 
men,  particularly  to  those  who  had  numerous  families  :  laws 
that  were  equally  wise  and  just,  since  a  citizen  who  rears    [  88  ] 
subjects  for  the  state  has  a  right  to  expect  more  favour  from 
it  than  the  man  who  chooses  to  live  for  himself  alone.* 

Every  thing  tending  to  depopulate  a  country  is  a  defect  in 
a  state  not  overstocked  with  inhabitants.  We  have  already 
spoken  of  convents  and  the  celibacy  of  priests.  It  is  strange 
that  establishments  so  directly  repugnant  to  the  duties  of  a 
man  and  citizen,  as  well  as  to  the  advantage  and  safety  of 
society,  should  have  found  such  favour,  and  that  princes,  in- 
stead of  opposing  them,  as  it  was  their  duty  to  do,  should  have 
protected  and  enriched  them. '  A  system  of  policy,  that  dex- 
trously  took  advantage  of  superstition  to  extend  its  own  power, 
led  princes  and  subjects  astray,  caused  them  to  mistake  their 
real  duties,  and  blinded  sovereigns  even  with  respect  to  their 
own  interest.  Experience  seems  at  length  to  have  opened  the 
eyes  of  nations  and  their  conductors  ;  the  pope  himself  (let  us 
mention  it  to  the  honour  of  Benedict  XIV.)  endeavors  grad- 

(55)  This  subject,  and  the  necessity  and  in  favour  of  celibacy.  "Videtur 

for  endeavouring  to  discourage  the  in-  esse  matrimonii  et  stupri  differentia, 

crease  of  population,  have,  in  recent  (says  Tertullian) :  sed  utrobique  est 

years,  occasioned  the  publication  of  communicatio.f  Ergo,  inquis,  et  primas 

numerous  works.  See  them  commented  nuptios  damnas?  Nee  immerito,  quo- 

upon.  1  Chitty's  Commercial  Law,  1,  2,  niam  et  ipsse  constant  ex  eo  quod  est 

Ac.  stuprum."  EXHORT.  CASTIT.  And  thus 

*  It  is  impossible  to  suppress  the  Jerome :  "  Hanc  tantum  esso  differenti- 

emotions  of  indignation  that  arise  on  am  inter  uxorem  et  scortum,  quod 

reading  what  some  of  the  fathers  of  the  tolerabilius  sit  uni  esse  prostitutam 

church  have  written  against  marriage,  quam  pluribus." 

f  Contaminatio. — EDIT. 
21  o2  161 


88  THIRD    OBJECT   OF   A   GOOD   GOVERNMENT,    DEFENCE. 

BOOK  i.  ually  to  reform  so  palpable  an  abuse ;  by  his  orders,  none  of 
CHAP.  XIY.  j^s  dominions  are  any  longer  permitted  to  take  the  vow  of 
celibacy  before  they  are  twenty-five  years  of  age.  That  wise 
pontiff  gives  the  sovereigns  of  his  communion  a  salutary  ex- 
ample ;  he  invites  them  to  attend  at  length  to.  the  safety  of 
their  states, — to  narrow  at  least,  if  they  cannot  entirely  close 
up,  the  avenues  of  that  sink  that  drains  their  dominions.  Take 
a  view  of  Germany ;  and  there,  in  countries  which  are  in  all 
other  respects  upon  an  equal  footing,  you  will  see  the  protest- 
ant  states  twice  as  populous  as  the  catholic  ones.  Compare 
the  desert  state  of  Spain  with  that  of  England,  teeming  with 
inhabitants :  survey  many  fine  provinces,  even  in  France, 
destitute  of  hands  to  till  the  soil ;  and  then  tell  me,  whether 
the  many  thousands  of  both  sexes,  who  are  now  locked  up  in 
convents,  would  not  serve  God  and  their  country  infinitely 
better  by  peopling  those  fertile  plains  with  useful  cultivators  ? 
It  is  true,  indeed,  that  the  catholic  cantons  of  Switzerland  are 
nevertheless  very  populous :  but  this  is  owing  to  a  profound 
peace,  and  the  nature  of  the  government,  which  abundantly 
repair  the  losses  occasioned  by  convents.  Liberty  is  able  to 
remedy  the  greatest  evils;  it  is  the  soul  of  a  state,  and  was 
with  great  justice  called  by  the  Romans  alma  Libertas. 
\  iso.  Va-  A  cowardly  and  undisciplined  multitude  are  incapable  of  re- 
lour,  pulsing  a  warlike  enemy :  the  strength  of  the  state  consists 
less  in  the  number  than  the  military  virtues  of  its  citizens.  Va- 
lour, that  heroic  virtue  which  makes  us  undauntedly  encounter 
[  89  ]  danger  in  defence  of  our  country,  is  the  firmest  support  of  the 
state :  it  renders  it  formidable  to  its  enemies,  and  often  even 
saves  it  the  trouble  of  defending  itself.  A  state  whose  repu- 
tation in  this  respect  is  once  well  established,  will  be  seldom 
attacked,  if  it  does  not  provoke  other  states  by  its  enterprises. 
For  above  two  centuries  the  Swiss  have  enjoyed  a  profound 
peace,  while  the  din  of  arms  resounded  all  around  them,  and 
the  rest  of  Europe  was  desolated  by  the  ravages  of  war.  Na- 
ture gives  the  foundation  of  valour ;  but  various  causes  may 
animate  it,  weaken  it,  and  even  destroy  it.  A  nation  ought 
then  to  seek  after  and  cultivate  a  virtue  so  useful ;  and  a 
prudent  sovereign  will  take  all  possible  measures  to  inspire 
his  subjects  with  it : — his  wisdom  will  point  out  to  him  the 
means.  It  is  this  generous  flame  that  animates  the  French 
nobility  :  fired  with  a  love  of  glory  and  of  their  country,  they 
fly  to  battle,  and  cheerfully  spill  their  blood  in  the  field  of 
honour.  To  what  an  extent  would  they  not  carry  their  con- 
quests, if  that  kingdom  were  surrounded  by  nations  less  war- 
like !  The  Briton,  generous  and  intrepid,  resembles  a  lion 
in  combat ;  and,  in  general,  the  nations  of  Europe  surpass  in 
bravery  all  the  other  people  upon  earth. 

\  181.  But  valour  alone  is  not  always  successful  in  war :  constant 

Other  mili-   success  can  only  be  obtained  by  an  assemblage  of  all  the  mi- 
wry  virtue?,  jitary  virtues.     History  shows  us  the  importance  of  ability 

162 


THIRD   OBJECT   OF   A   GOOD   GOVERNMENT,  DEFENCE.  89 

in  the  commanders,  of  military  discipline,  frugality,  bodily  BOOK  i. 
strength,  dexterity,  and  being  inured  to  fatigue  and  labour.  CHAP-  XIV.:. 
These  are  so  many  distinct  branches  which  a  nation  ought 
carefully  to  cultivate.  It  was  the  assemblage  of  all  these 
that  raised  so  high  the  glory  of  the  Romans,  and  rendered 
them  the  masters  of  the  world.  It  were  a  mistake  to  suppose 
that  valour  alone  produced  those  illustrious  exploits  of  the 
ancient  Swiss — the  victories  of  Morgarten,  Sempach,  Laupen, 
Morat,  and  many  others.  The  Swiss  not  only  fought  with 
intrepidity :  they  studied  the  art  of  war, — they  inured  them- 
selves to  its  toils, — they  accustomed  themselves  to  the  prac- 
tice of  all  its  manoeuvres, — and  their  very  love  of  liberty  made 
them  submit  to  a  discipline  which  could  alone  secure  to  them 
that  treasure,  and  save  their  country.  Their  troops  were  no 
less  celebrated  for  their  discipline  than  their  bravery.  Me- 
zeray,  after  having  given  an  account  of  the  behaviour  of  the 
Swiss  at  the  battle  of  Dreux,  adds  these  remarkable  words : 
"in  the  opinion  of  all  the  officers  of  both  sides  who  were  pre- 
sent, the  Swiss,  in  that  battle,  under  every  trial,  against  in- 
fantry and  cavalry,  against  French  and  against  Germans, 
gained  the  palm  for  military  discipline,  and  acquired  the  re- 
putation of  being  the  best  infantry  in  the  world."* 

Finally,  the  wealth  of  a  nation  constitutes  a  considerable  g  182. 
part  of  its  power,  especially  in  modern  times,  when  war  re-  Riches, 
quires  such  immense  expenses.  It  is  not  simply  in  the  re- 
venues of  the  sovereign,  or  the  public  treasure,  that  the  riches 
of  a  nation  consist :  its  opulence  is  also  rated  from  the  wealth  [  90  ] 
of  individuals.  We  commonly  call  a  nation  rich,  when  it 
contains  a  great  number  of  citizens  in  easy  and  affluent  cir- 
cumstances. The  wealth  of  private  persons  really  increases 
the  strength  of  the  nation  ;  since  they  are  capable  of  contri- 
buting large  sums  towards  supplying  the  necessities  of  the 
state,  and  that,  in  a  case  of  extremity,  the  sovereign  may  even 
employ  all  the  riches  of  his  subjects  in  the  defence,  and  for 
the  safety  of  the  state,  in  virtue  of  the  supreme  command 
with  which  he  is  invested,  as  we  shall  hereafter  show.  The 
nation,  then,  ought  to  endeavour  to  acquire  those  public  and 
private  riches  that  are  of  such  use  to  it :  and  this  is  a  new 
reason  for  encouraging  a  commerce  with  other  nations,  which 
is  the  source  from  whence  they  flow, — and  a  new  motive  for 
the  sovereign  to  keep  a  watchful  eye  over  the  different 
branches  of  foreign  trade  carried  on  by  his  subjects,  in  order 
that  he  may  preserve  and  protect  the  profitable  branches, 
and  cut  off  those  that  occasion  the  exportation  of  gold  and 
silver. 

It  is  requisite  that  the  state  should  possess  an  income  pro-  g  183.  Pub- 
portionate  to  its  necessary  expenditures.  That  income  may lic  revenues 
be  supplied  by  various  means, — by  lands  reserved  for  that and  taxes> 

*  History  of  France,  vol.  ii.  p.  888. 


OF   THE    GLORY  OF  A   NATION. 

BOOK  i.    purpose,  by  contributions,  taxes  of  different  kinds,  &c. — but 
CHAP,  xiv.  of  ^g  suhject  we  shall  treat  in  another  place. 
§  184.   The      We  have  here  summed  up  the  principal  ingredients  that 
nation  ought  constitute  that  strength  which  a  nation  ought  to  augment  and 
crease  its     imProve-     Can  it  be  necessary  to  add  the  observation,  that 
power  by  ii-  this  desirable  object  is  not  to  be  pursued  by  any  other  me- 
legal  means,  thods  than  such  as  are  just  and  innocent  ?     A  laudable  end 
is  not  sufficient  to  sanctify  the  tmeans;  for  these  ought  to  be 
in  their  own  nature  lawful.     The  law  of  nature  cannot  con- 
tradict itself:  if  it  forbids  an  action  as  unjust  or  dishonest  in 
its  own  nature,  it  can  never  permit  it  for  any  purpose  what- 
ever.    And  therefore  in  those  cases  where  that  object,  in 
itself  so  valuable  and  so  praiseworthy,  cannot  be  attained 
without  employing  unlawful  means,  it  ought  to  be  considered 
as  unattainable,  and  consequently  be  relinquished.     Thus,  we 
shall  show,  in  treating  of  the  just  causes  of  war,  that  a  nation 
is  not  allowed  to  attack  another  with  a  view  to  aggrandize 
itself  by  subduing  and  giving  law  to  the  latter.     This  is  just 
the  same  as  if  a  private  person  should  attempt  to  enrich  him- 
self by  seizing  his  neighbour's  property. 

§  185.  Pow-  The  power  of  a  nation  is  relative,  and  ought  to  be  measured 
ens  but  re-  ^y  ^at  Qf  jtg  neighbours,  or  of  all  the  nations  from  whom  it 
has  any  thing  to  fear.  The  state  is  sufficiently  powerful  when 
it  is  capable  of  causing  itself  to  be  respected,  and  of  repelling 
whoever  would  attack  it.  It  may  be  placed  in  this  happy 
situation,  either  by  keeping  up  its  own  strength  equal  or  even 
superior  to  that  of  its  neighbours,  or  by  preventing  their 
rising  to  a  predominant  and  formidable  power.  But  we  can- 
not show  here  in  what  cases  and  by  what  means  a  state  may 
[  91  ]  justly  set  bounds  to  the  power  of  another.  It  is  necessary, 
first,  to  explain  the  duties  of  a  nation  towards  others,  in  order 
to  combine  them  afterwards  with  its  duties  towards  itself. 
For  the  present,  we  shall  only  observe,  that  a  nation,  while 
it  obeys  the  dictates  of  prudence  and  wise  policy  in  this  in- 
stance, ought  never  to  lose  sight  of  the  maxims  of  justice. 


CHAP.  XV. 

OF   THE   GLORY   OF   A   NATION. 


§  186.  Ad-  THE  glory  of  a  nation  is  intimately  connected  with  its 
vantages  of  p0wer?  an(j  indeed  forms  a  considerable  part  of  it.  It  is  this 
brilliant  advantage  that  procures  it  the  esteem  of  other  na- 
tions, and  renders  it  respectable  to  its  neighbours.  A  nation 
whose  reputation  is  well  established — especially  one  whose 
glory  is  illustrious — is  courted  by  all  sovereigns ;  they  desire 
its  friendship,  and  are  afraid  of  offending  it.  Its  friends,  and 

164 


OF   THE   GLORY   OF  A   NATION.  91 


those  who  wish  to  become  so,  favour  its  enterprises ;    and     BOOK  '• 
those  who  envy  its  prosperity  are  afraid  to  show  their  ill-will.   CHAP-  XY- 

It  is,  then,  of  great  advantage  to  a  nation  to  establish  its  g  isr.  Duty 
reputation  and  glory ;  hence,  this  becomes  one  of  the  most  of  the  na- 
important  of  the  duties  it  owes  to  itself.     True  glory  consists tion> 
in  the  favourable   opinion  of  men  of  wisdom   and  discern- 
ment ;  it  is  acquired  by  the  virtues  or  good  qualities  of  the 
head  and  the  heart,  and   by  great  actions,  which  are  the 
fruits  of  those  virtues.     A  nation  may  have  a  two-fold  claim  HOW  true 
to  it ; — first,  by  what  it  does  in  its  national  character,  by  the  slory  is  ac- 
conduct  of  those  who  have  the  administration  of  its  affairs,  <iuired- 
and  are  invested  with  its  authority  and  government;   and, 
secondly,  by  the  merit  of  the  individuals  of  whom  the  nation 
is  composed. 

A  prince,  a  sovereign  of  whatever  kind,  being  bound  to  §  188.  Duty 
exert  every  effort  for  the  good  of  the  nation,  is  doubtless ofthe 
obliged  to  extend  its  glory  as  far  as  lies  in  his  power.  ~Weprince' 
have  seen  that  his  duty  is  to  labour  after  the  perfection  of 
the  state,  and  of  the  people  who  are  subject  to  him ;  by  that 
means  he  will  make  them  merit  a  good  reputation  and  glory. 
He  ought  always  to  have  this  object  in  view,  in  every  thing 
he  undertakes,  and  in  the  use  he  makes  of  his  power.  Let 
him,  in  all  his  actions,  display  justice,  moderation,  and  great- 
ness of  soul,  and  he  will  thus  acquire  for  himself  and  his  peo- 
ple a  name  respected  by  the  universe,  and  not  less  useful  than 
glorious.  The  glory  of  Henry  IV.  saved  France.  In  the 
deplorable  state  in  which  he  found  affairs,  his  virtues  gave 
animation  to  the  loyal  part  of  his  subjects,  and  encouraged 
foreign  nations  to  lend  him  their  assistance,  and  to  enter  into 
an  alliance  with  him  against  the  ambitious  Spaniards.  In  his 
circumstances,  a  weak  prince  of  little  estimation  would  have 
been  abandoned  by  all  the  world ;  people  would  have  been 
afraid  of  being  involved  in  his  ruin. 

Besides  the  virtues  which  constitute  the  glory  of  princes  as  [  92  ] 
well  as  of  private  persons,  there  is  a  dignity  and  decorum 
that  particularly  belong  to  the  supreme  rank,  and  which  a 
sovereign  ought  to  observe  with  the  greatest  care.  He  can- 
not neglect  them  without  degrading  himself,  and  casting  a 
stain  upon  the  state.  Every  thing  that  emanates  from  the 
throne  ought  to  bear  the  character  of  purity,  nobleness,  and 
greatness.  What  an  idea  do  we  conceive  of  a  people,  when 
we  see  their  sovereign  display,  in  his  public  acts,  a  meanness 
of  sentiment  by  which  a  private  person  would  think  himself 
disgraced  !  All  the  majesty  of  the  nation  resides  in  the  per- 
son of  the  prince ;  what,  then,  must  become  of  it,  if  he  pros- 
titutes it,  or  suffers  it  to  be  prostituted  by  those  who  speak 
and  act  in  his  name  ?  The  minister  who  puts  into  his  mas- 
ter's mouth  a  language  unworthy  of  him,  deserves  to  be 
turned  out  of  office  with  every  mark  of  ignominy. 

The  reputation  of  individuals  is,  by  a  common  and  natural 

165 


92  OF   THE   GLORY   OF   A   NATION. 

BOOK  i.    mode  of  speaking  and  thinking,  made  to  reflect  on  the  whole 
JAP.  xv.  nation>     jn  genial,  we  attribute  a  virtue  or  a  vice  to  a  peo- 


2  189.  Duty  pje^  wnen  that  vice  or  that  virtue  is  frequently  observed  among 
zens.6  C  *~  them.  We  say  that  a  nation  is  warlike,  when  it  produces  a 
great  number  of  brave  warriors  ;  that  it  is  learned,  when 
there  are  many  learned  men  among  the  citizens  ;  and  that  it 
excels  in  the  arts,  when  it  produces  many  able  artists.  On 
the  other  hand,  we  call  it  cowardly,  lazy,  or  stupid,  when 
men  of  those  characters  are  more  numerous  there  than  else- 
where. The  citizens,  being  obliged  to  labour  with  all  their 
might  to  promote  the  welfare  and  advantage  of  their  country, 
not  only  owe  to  themselves  the  care  of  deserving  a  good  re- 
putation, but  they  also  owe  it  to  the  nation,  whose  glory  is  so 
liable  to  be  influenced  by  theirs.  Bacon,  Newton,  Descartes, 
Leibnitz,  and  Bernouilli,  have  each  done  honour  to  his  native 
country,  and  essentially  benefited  it  by  the  glory  he  acquired. 
Great  ministers,  and  great  generals  —  an  Oxenstiern,  a  Tu- 
renne,  a  Marlborough,  a  Ruyter  —  serve  their  country  in  a 
double  capacity,  both  by  their  actions  and  by  their  glory. 
On  the  other  hand,  the  fear  of  reflecting  a  disgrace  on  his 
country  will  furnish  the  good  citizen  with  a  new  motive  for 
abstaining  from  every  dishonourable  action.  And  the  prince 
ought  not  to  suffer  his  subjects  to  give  themselves  up  to  vices 
capable  of  bringing  infamy  on  the  nation,  or  even  of  simply 
tarnishing  the  brightness  of  its  glory  ;  he  has  a  right  to  sup- 
press and  to  punish  scandalous  enormities,  which  do  a  real 
injury  to  the  state. 

g  190.  Ex-  The  example  of  the  Swiss  is  very  capable  of  showing  how 
ample  of  advantageous  glory  may  prove  to  a  nation.  (56)  The  high 
the  Swiss.  reputation  they  have  acquired  for  their  valour,  and  which 
they  still  gloriously  support,  has  preserved  them  in  peace  for 
above  two  centuries,  and  rendered  all  the  powers  of  Europe 
desirous  of  their  assistance.  Louis  XL,  while  dauphin,  was 
witness  of  the  prodigies  of  valour  they  performed  at  the 
[  93  ]  battle  of  St.  Jacques,  near  Basle,  and  he  immediately  formed 
the  design  of  closely  attaching  to  his  interest  so  intrepid  a 
nation.*  The  twelve  hundred  gallant  heroes,  who  on  this 
occasion  attacked  an  army  of  between  fifty  and  sixty  thou- 
sand veteran  troops,  first  defeated  the  vanguard  of  the  Ar- 
magnacs,  which  was  eighteen  thousand  strong  ;  afterwards, 
rashly  engaging  the  main  body  of  the  army,  they  perished 
almost  to  a  man,  without  being  able  to  complete  their  victory,  f 
But,  besides  their  terrifying  the  enemy,  and  preserving 


(56)  This  observation  properly  refers  considered    by    their     countrymen     as 

to  ante,  $  124,  p.  54.  cowards  that   had  preferred   a   life  of 

*  See  the  Memoirs  of  Comines.  shame  to  the  honour  of  dying  for  their 

•(•  Of  this  small  army,  "  eleven  hun-  country."     History  of  the  Helvetic  Con- 

dred  and  fifty-eight  were  counted  dead  federacy,  by  M.  de  Watteville,  vol.  i.  p. 

on  the   field,  and  thirty -two  wounded.  250. — Tschudi,  p.  425. 

Twelve   men  only  escaped,   who   were 
166 


OF   THE   PROTECTION   SOUGHT   BY  A   NATION. 

Switzerland  from  a  ruinous  invasion,  they  rendered  her  essen-     BOOK  i^ 
tial  service  by  the  glory  they  acquired  for  her  arms.     A  re-  — 
putation  for  an  inviolable  fidelity  is  no  less   advantageous  to 
that  nation  ;  and  they  have  at  all  times  been  jealous  of  pre- 
serving it.     The  canton  of  Zug  punished  with  death  that  un- 
worthy soldier  who  betrayed  the  confidence  of  the  duke  of 
Milan  by  discovering  that  prince  to   the   French,  when,  -to 
escape  them,  he  had  disguised  himself  in  the  habit  of  the 
Swiss,  and  placed  himself  in  their  ranks  as  they  were  march- 
ing out  of  Novara.* 

Since  the  glory  of  a  nation  is  a  real  and  substantial  ad-  §  191-  At- 
vantage,  she  has  a  right  to  defend  it,  as  well  as  her  other  ad-  JJJ?*,** 
vantages.  He  who  attacks  her  glory  does  her  an  injury  ;  and  nation  is  do_ 
she  has  a  right  to  exact  of  him,  even  by  force  of  arms,  a  just  ing  he 
reparation.  We  cannot,  then,  condemn  those  measures,  some-  injury. 
times  taken  by  sovereigns  to  support  or  avenge  the  dignity 
of  their  crown.  They  are  equally  just  and  necessary.  If, 
when  they  do  not  proceed  from  too  lofty  pretensions,  we  at- 
tribute them  to  a  vain  pride,  we  only  betray  the  grossest  igno- 
rance of  the  art  of  reigning  :  and  despise  one  of  the  firmest 
supports  of  the  greatness  and  safety  of  a  state. 


er  an 


CHAP.    XVI. 


CHAP.  XVI. 

OF   THE   PROTECTION   SOUGHT   BY  A   NATION,    AND   ITS   VOLUN- 
TARY  SUBMISSION   TO   A   FOREIGN   POWER. 

WHEN  a  nation  is  not  capable  of  preserving  herself  from  § 192.    Pro- 
insult  and  oppression,  she  may  procure  the  protection  of  a  teotion. 
more  powerful  state.     If  she   obtains  this  by  only  engaging 
to  perform  certain  articles,  as  to  pay  a  tribute  in  return  for 
the  safety  obtained, — to  furnish  her  protector  with  troops, — 
and  to  embark  in  all  his  wars  as  a  joint  concern, — but  still    [  94  ] 
reserving  to  herself  the  right  of  administering  her  own  govern- 
ment at  pleasure, — it  is  a  simple  treaty  of  protection,  that 
does  not  all  derogate  from  her  sovereignty,  and  differs  not 
from  the  ordinary  treaties  of  alliance,  otherwise  than  as  it 
creates  a  difference  in  the  dignity  of  the  contracting  parties. 

But  this  matter  is  sometimes  carried  still  farther :  and,  al-  § 193-    v°- 
though  a  nation  is  under  an  obligation  to  preserve  with  the  JjJPjJJJ  ™b~ 
utmost  care  the  liberty  and  independence  it  inherits  from  one  nation 
nature,  yet  when  it  has   not  sufficient  strength  of  itself,  and  to  another, 
feels  itself  unable  to  resist  its  enemies,  it  may  lawfully  sub- 
ject itself  to  a  more  powerful  nation  on  certain  conditions 

*  Vogel's    Historical     and    political    France    and   the    Thirteen  Cantons,  p. 
Treatise     of    the     Alliances    between    75,  76. 

167 


94  OF    THE    PROTECTION    SOUGHT    BY   A   NATION. 

BOOK  i.  agreed  to  by  both  parties :  and  the  compact  or  treaty  of  sub- 
CHAP.  xvi.  mjsgion  win  thenceforward  be  the  measure  and  rule  of  the 
rights  of  each.  For,  since  the  people  who  enter  into  subjec- 
tion resign  a  right  which  naturally  belongs  to  them,  and  trans- 
fer it  to  the  other  nation,  they  are  perfectly  at  liberty  to  an- 
nex what  conditions  they  please  to  this  transfer ;  and  the 
other  party,  by  accepting  their  submission  on  this  footing, 
engages  to  observe  religiously  all  the  clauses  of  the  treaty. 
§  194.  So-  This  submission  may  be  varied  to  infinity,  according  to  the 
verai  kinds  ^i}j  of  the  contracting  parties :  it  may  either  leave  the  infe- 
6ionUbmiS~  r*or  nati°n  a  Pai>t  °f  the  sovereignty,  restraining  it  only  in  cer- 
tain respects,  or  it  may  totally  abolish  it,  so  that  the  superior 
nation  shall  become  the  sovereign  of  the  other, — or,  finally, 
the  lesser  nation  may  be  incorporated  with  the  greater,  in 
order  thenceforward  to  form  with  it  but  one  and  the  same 
state :  and  then  the  citizens  of  the  former  will  have  the  same 
privileges  as  those  with  whom  they  are  united.  .  The  Roman 
history  furnishes  examples  of  each  of  these  three  kinds  of  sub- 
mission,— 1.  The  allies  of  the  Roman  people,  such  as  the  in- 
habitants of  Latium  were  for  a  long  time,  who,  in  several  re- 
spects, depended  on  Rome,  but,  in  all  others,  were  governed 
according  to  their  own  laws,  and  by  their  own  magistrates ; — 

2.  The  countries   reduced   to  Roman   provinces,  as  Capua, 
whose  inhabitants  submitted  absolutely  to  the  Romans; — * 

3.  The  nations  to  which  Rome  granted  the  freedom  of  the 
city.     In  after  times  the  emperors  granted  that  privilege  to 
all  the  nations  subject  to  the  empire,  and  thus  transformed 
all  their  subjects  into  citizens. 

\  195.  Right     In  the  case  of  a  real  subjection  to  a  foreign  power,  the 

of  the  citi-   citizens  who  do  not  approve  this  change  are  not  obliged  to 

the  nitron    submit  to  it :— they  ought  to  be  allowed  to  sell  their  effects 

submits  to  a  and  retire  elsewhere.     For,  my  having  entered  into  a  society 

foreign  pow-  does  not  oblige  me  to  follow  its  fate,  when  it  dissolves  itself 

er-  in  order  to  submit  to  a  foreign  dominion.    I  submitted  to  the 

society  as  it  then  was,  to  live  in  that  society  as  the  member 

of  a  sovereign  state,  and  not  in  another :  I  am  bound  to  obey 

it,  while  it  remains  a  political  society :  but,  when  it  divests 

[  95  ]   itself  of  that  quality  in  order  to  receive  its  laws  from  another 

state,  it  breaks  the  bond  of  union  between  its  members,  and 

releases  them  from  their  obligations. 

§  196.  When  a  nation  has  placed  itself  under  the  protection  of 

These  com-  another  that  is  more  powerful,  or  has  even  entered  into  sub- 
pacts  annul-  jection  to  it  with  a  view  to  receiving  its  protection, — if  the 
failure  of6    ^^er  does  not  effectually  protect  the  other  in  case  of  need, 
protection,    it  is  manifest,  that,  by  failing  in  its  engagements,  it  loses  all 
the  rights  it  had  acquired  by  the  convention,  and  that  the 
other,  being  disengaged  from  the  obligation  it  had  contracted, 

*  Itaque    populum    Campanum,    ur-  patres    conscript!,    populique    Romani 

bemque  Capuam,  agros,  delubra  deflm,  ditionem    dedimus.      LIVY,  book   vii. 

divina   huinanaque  omnia,  in  restrain,  c.  31. 
168 


OF   THE    PROTECTION    SOUGHT   BY   A   NATION. 


95 


re-enters  into  the  possession  of  all  its  rights,  and  recovers  its  BOOK  i. 
independence,  or  its  liberty.  It  is  to  be  observed  that  this  CHAP-  XYIi 
takes  place  even  in  cases  where  the  protector  does  not  fail  in 
his  engagements  through  the  want  of  good  faith,  but  merely 
through  inability.  For,  the  weaker  nation  having  submitted 
only  for  the  sake  of  obtaining  protection, — if  the  other  proves 
unable  to  fulfil  that  essential  condition,  the  compact  is  dis- 
solved ; — the  weaker  resumes  its  rights,  and  may,  if  it  thinks 
proper,  have  recourse  to  a  more  effectual  protection.*  Thus, 
the  dukes  of  Austria,  who  had  acquired  a  right  of  protection, 
and  in  some  sort  a  sovereignty  over  the  city  of  Lucerne,  being 
unwilling  or  unable  to  protect  it  effectually,  that  city  con- 
cluded an  alliance  with  the  three  first  cantons  ;  and  the  dukes 
having  carried  their  complaint  to  the  emperor,  the  inhabit- 
ants of  Lucerne  replied,  "  that  they  had  used  the  natural 
right  common  to  all  men,  by  which  every  one  is  permitted  to 
endeavour  to  procure  his  own  safety  when  he  is  abandoned  by 
those  who  are  obliged  to  grant  him  assistance,  "f 

The  law  is  the  same  with  respect  to  both  the  contracting  §  197.    Or 
parties :  if  the  party  protected  do   not  fulfil  their  engage-  by. .tlie  "lfi* 
ments  with  fidelity,  the  protector  is  discharged  from  his  ;  ^f^^e 
may  afterwards  refuse  his  protection,  and  declare  the  treaty  tectcd. 
broken,  in  case  the  situation  of  his  affairs  renders  such  a  step 
advisable. 

In  virtue  of  the  same  principle  which  discharges  one  of  the  §  198-  AnJ 
contracting  parties  when  the  other  fails  in  his  engagements,  by  thf  en~ 
if  the  more  powerful  nation  should  assume  a  greater  autho-  of  the  pro. 
rity  over  the  weaker  one  than  the  treaty  of  protection  or  sub-  tector. 
mission  allows,  the  latter  may  consider  the  treaty  as  broken, 
and  provide  for  its  safety  according  to  its  own  discretion.   If 
it  were  otherwise,  the  inferior  nation  would  lose  by  a  conven- 
tion which  it  had  only  formed  with  a  view  to  its  safety ;  and 
if  it  were  still  bound  by  its  engagements  when  its  protector 
abuses  them  and  openly  violates  his  own,  the  treaty  Avould, 
to  the  weaker  party,  prove  a  downright  deception.     However,    [  96  ] 
as  some  people  maintain,  that,  in  this  case,  the  inferior  nation 
has  only  the  right  of  resistance  and  of  imploring  foreign  aid, 
— and  particularly  as  the  weak  cannot  take  too  many  pre- 
cautions against  the  powerful,  who  are  skilful  in  colouring 
over  their  enterprises, — the  safest  way  is  to  insert  in  this  kind 
of  treaty  a  clause  declaring  it  null  and  void  whenever  the 

*  We  speak  here  of  a  nation  that  f  See  The  History  of  Switzerland. 
has  rendered  itself  subject  to  another,  The  United  Provinces,  having  been 
and  not  of  one  that  has  incorporated  obliged  to  rely  wholly  on  their  own 
itself  with  another  state,  so  as  to  con-  efforts  in  defending  themselves  against 
stitute  a  part  of  it.  The  latter  stands  Spain,  would  no  longer  acknowledge 
in  the  same  predicament  with  all  th«-  any  dependence  on  the  empire  from 
other  citizens.  Of  this  case  we  shalJ  which  they  had  received  no  assistance, 
treat  in  the  following  chapter.  GROTIUS,  Hist,  of  the  Troubles  in  the  Low 

Countries,  b.  xvi.  p.  627. 
22  P  169 


96  HOW   A    NATION    MAY    SEPARATE    ITSELF. 

BOOK  i.     superior  power  shall  arrogate  to  itself  any  rights  not  expressly 
CHAP,  xvi.  granted  by  the  treaty. 

§  199.  How      But  if  the  nation  that  is  protected,  or  that  has  placed 
the  right  of  itself  in  subjection  on  certain  conditions,  does  not  resist  the 
^rotectecHs  encroacnments  °f  that  power  from  which  it  has  sought  sup- 
lost  by Its^  Port — if  ^  makes  no  opposition  to  them — if  it  preserves  a 
silence.        profound  silence,  when  it  might  and  ought  to  speak — its  pa- 
tient acquiescence  becomes  in.Jength  of  time  a  tacit  consent 
that  legitimates  the  rights  of  the  usurper.     There  would  be 
no  stability  in  the  affairs  of  men,  and  especially  in  those  of 
nations,  if  long  possession,  accompanied  by  the  silence  of  the 
persons  concerned,  did  not  produce  a  degree  of  right.     But 
it  must  be  observed,  that  silence,  in  order  to  show  tacit  con- 
sent, ought  to  be  voluntary.     If  the  inferior  nation  proves 
that  violence  and  fear  prevented  its  giving  testimonies  of  its 
opposition,  nothing  can  be  concluded  from  its  silence,  which 
therefore  gives  no  right  to  the  usurper. 


CHAP.  XVII. 

CHAP,  xvn.  HOW  A  NATION  MAY  SEPARATE  ITSELF  FROM  THE  STATE  OF 
WHICH  IT  IS  A  MEMBER,  OR  RENOUNCE  ITS  ALLEGIANCE 
TO  ITS  SOVEREIGN  WHEN  IT  IS  NOT  PROTECTED. 

§  200.   Dif-      WE  have  said  that  an  independent  nation,  which,  without 
ference  be-   becoming  a  member  of  another  state,  has  voluntarily  rendered 
tween  the     itself  dependent  on,  or  subject  to  it,  in  order  to  obtain  pro- 
and  those^n  tecti°n?  is  released  from  its  engagements  as  soon  as  that  pro- 
the  preced-  tection  fails,  even  though  the  failure   happen  through  the 
ing  chapter,  inability  of  the  protector.     But  we  are  not  to  conclude  that  it 
is  precisely  the  same  case  with  every  nation  that  cannot  ob- 
tain speedy  and  effectual  protection  from  its  natural  sovereign 
or  the  state  of  which  it  is  a  member.     The  two  cases  are  very 
different.     In  the  former,  a  free  nation  becomes  subject  to 
another  state, — not  to  partake  of  all  the  other's  advantages, 
and  form  with  it  an  absolute  union  of  interests  (for,  if  the 
more  powerful  state  were  -willing  to  confer  so  great  a  favour, 
the  weaker  one  would  be  incorporated,  not  subjected), — but  to 
obtain  protection  alone  by  the  sacrifice  of  its  liberty,  without 
expecting  any  other  return.     When,  therefore,  the  sole  and 
indispensable  condition  of  its  subjection  is  (from  what  cause 
soever)  not  complied  with,  it  is  free  from  its  engagements ; 
and  its  duty  towards  itself  obliges  it  to  take  fresh  methods  to 
provide  for  its  own  security.     But  the  several  members  of  one 
individual  state,  as  they  all  equally  participate  in  the  advan- 
tages it  procures,  are  bound  uniformly  to  support  it :  they 
have  entered  into  mutual  engagements  to  continue  united 
iro 


HOW   A   NATION   MAY   SEPARATE   ITSELF.  97 

with  each  other,  and  to  have  on  all  occasions  but  one  common  BOOK  i. 
cause.  If  those  who  are  menaced  or  attacked  might  sepa- OHAP-  xv"- 
rate  themselves  from  the  others,  in  order  to  avoid  a  present 
danger,  every  state  would  soon  be  dismembered  and  destroyed. 
It  is,  then,  essentially  necessary  for  the  safety  of  society,  and 
even  for  the  welfare  'of  all  its  members,  that  each  part  should 
with  all  its  might  resist  a  common  enemy,  rather  than  sepa- 
rate from  the  others ;  and  this  is  consequently  one  of  the 
necessary  conditions  of  the  political  association.  The  natural 
subjects  of  a  prince  are  bound  to  him  without  any  other 
reserve  than  the  observation  of  the  fundamental  laws ; — it  is 
their  duty  to  remain  faithful  to  him,  as  it  is  his,  on  the  other 
hand,  to  take  care  to  govern  them  well :  both  parties  have 
but  one  common  interest ;  the  people  and  the  prince  together 
constitute  but  one  complete  whole,  one  and  the  same  society. 
It  is,  then,  an  essential  and  necessary  condition  of  the  poli- 
tical society,  that  the  subjects  remain  united  to  their  prince 
as  far  as  in  their  power.  (57) 


When,  therefore,  a  city  or  a  province  is  threatened  or  actu-  §  201.   Du- 
y  attacked,  it  must  not,  for  the  sake  of  escaping  the  danger,  <y 
separate  itself  from  the  state  of  which  it  is  a  member,  orm 


ally  attacked,  it  must  not,  for  the  sake  of  escaping  the  danger,  <y  of  tne 
separate  itself  from  the  state  of  which  it  is  a  member,  or  mg!n!)ers  °f 
abandon  its  natural  prince,  even  when  the  state  or  the  prince  sut)ject'sof  a 


is  unable  to  give  it  immediate  and  effectual  assistance.  Its  prince,  who 
duty,  its  political  engagements,  oblige  it  to  make  the  greatest are  in  dan- 
efforts,  in  order  to  maintain  itself  in  its  present  state.  If  it ger' 
is  overcome  by  force,  necessity,  that  irresistible  law,  frees  it 
from  its  former  engagements,  and  gives  it  a  right  to  treat 
with  the  conqueror,  in  order  to  obtain  the  best  terms  possible. 
If  it  must  either  submit  to  him  or  perish,  who  can  doubt  but 
that  it  may  and  even  ought  to  prefer  the  former  alternative  ? 
Modern  usage  is  conformable  to  this  decision : — a  city  sub- 
mits to  the  enemy  when  it  cannot  expect  safety  from  a  vigor- 
ous resistance ;  it  takes  an  oath  of  fidelity  to  him ;  and  its 
sovereign  lays  the  blame  on  fortune  alone. 

The  state  is  obliged  to  defend  and  preserve  all  its  mem-  §  202.  Their 
bers  (§  17) ;   and  the  prince  owes  the  same  assistance  to  hisri&ht  when 
subjects.    If,  therefore,  the  state  or  the  prince  refuses  or  neg-  ^and^ned 
lects  to  succour  a  body  of  people  who  are  exposed  to  immi- 
nent danger,  the  latter,  being  thus  abandoned,  become  per- 
fectly free  to  provide  for  their  own  safety  and  preservation 
in  whatever  manner  they  find  most  convenient,  without  pay- 
ing the  least  regard  to  those  who,  by  abandoning  them,  have 
been  the  first  to  fail  in  their  duty.    The  country  of  Zug,  being  * 

attacked  by  the  Swiss  in  1352,  sent  for  succour  to  the  duke 
of  Austria,  its  sovereign ;  but  that  prince,  being  engaged  in 

(57)  Nemo  potest  exure  patriam.  is  absolutely  conquered  by  a  foreign 
This  is  part  of  natural  allegiance,  which  power,  and  the  parent  state  has 
no  individual  can  shake  off  until  the  acknowledged  the  severance.  Sea 
part  of  the  country  where  he  resides  1  Chilly's  Commercial  Law,  129. 

171 


97  ESTABLISHMENT   OF   A    NATION 

BOOK  i.  discourse  concerning  his  hawks,  at  the  time  when  the  depu- 
CHAP.  xvn.  ^eg  appeare(j  before  him,  would  scarcely  condescend  to  hear 
them.  Thus  abandoned,  the  people  of  Zug  entered  into  the 
[  98  ]  Helvetic  confederacy.*  The  city  of  Zurich  had  been  in  the 
same  situation  the  year  before.  Being  attacked  by  a  band 
of  rebellious  citizens  who  were  supported  by  the  neighbouring 
nobility,  and  the  house  of  Austria,  it  made  application  to  the 
head  of  the  empire :  but  Charles  IV.,  who  was  then  emperor, 
declared  to  its  deputies  that  he  could  not  defend  it ; — upon 
which  Zurich  secured  its  safety  by  an  alliance  with  the  Swiss. f 
The  same  reason  has  authorized  the  Swiss,  in  general,  to 
separate  themselves  entirely  from  the  empire,  which  never 
protected  them  in  any  emergency ;  they  had  not  owned  its 
authority  for  a  long  time  before  their  independence  was  ac- 
knowledged by  the  emperor  and  the  whole  Germanic  body, 
at  the  treaty  of  Westphalia. 


CHAP  XVIII. 

CHAP.  XYIII.        OF   THE   ESTABLISHMENT   OF  A   NATION   IN   A   COUNTRY. 

$  203.  Pos-  HITHERTO  we  have  considered  the  nation  merely  with 
session  of  a  regpect  to  itself,  without  any  regard  to  the  country  it  pos- 
sesses-  -^e*  us  now  see  **  established  in  a  country  which 
becomes  its  own  property  and  habitation.  The  earth  belongs 
to  mankind  in  general ;  destined  by  the  Creator  to  be  their 
common  habitation,  and  to  supply  them  with  food,  they  all 
possess  a  natural  right  to  inhabit  it,  and  to  derive  from  it 
whatever  is  necessary  for  their  subsistence,  and  suitable  to 
their  wants.  But  when  the  human  race  became  extremely 
multiplied,  the  earth  was  no  longer  capable  of  furnishing 
spontaneously,  and  without  culture,  sufficient  support  for  its 
inhabitants ;  neither  could  it  have  received  proper  cultivation 
from  wandering  tribes  of  men  continuing  to  possess  it  in 
common.  It  therefore  became  necessary  that  those  tribes 
should  fix  themselves  somewhere,  and  appropriate  to  them- 
selves portions  of  land,  in  order  that  they  might,  without 
being  disturbed  in  their  labour,  or  disappointed  of  the  fruits 
of  their  industry,  apply  themselves  to  render  those  lands  fer- 
tile, and  thence  derive  their  subsistence.  Such  must  have 
been  the  origin  of  the  rights  of  property  and  dominion :  and 
it  was  a  sufficient  ground  to  justify  their  establishment.  Since 
their  introduction,  the  right  which  was  common  to  all  man- 
kind is  individually  restricted  to  what  each  lawfully  possesses. 

*  See  Etterlin,  Simler,  and  De  Wat-        f  See  the  same  historians,  and  Bul- 
teville.  linger,  Stumpf,  Tschudi,  and  Stettler. 

172 


CHAP-  xvn*- 


IN   A   COUNTRY. 

The  country  which  a  nation  inhabits,  whether  that  nation  has  BOOK 
emigrated  thither  in  a  body,  or  the  different  families  of  which 
it  consists  were  previously  scattered  over  the  country,  and, 
there  uniting,  formed  themselves  into  a  political  society,  — 
that  country,  I  say,  is  the  settlement  of  the  nation,  and  it  has 
a  peculiar  and  exclusive  right  to  it. 

This  right  comprehends  two  things  :  1.  The  domain,  by  I  204.   ita 
virtue  of  which  the  nation  alone  may  use  the  country  for  the  risht  over 
supply  of  its  necessities,  may  dispose  of  it  as  it  thinks  pro-  }tsep^gg*ss  m 
per,  and  derive  from  it  every  advantage  it  is  capable  of  yield-  sion. 
ing.     2.  The  empire,  or  the  right  of  sovereign  command,  by   [  99  ] 
which  the  nation  directs  and  regulates  at  its  pleasure  every 
thing  that  passes  in  the  country. 

When  a  nation  takes  possession  of  a  country  to  which  no  §  205.  Ac- 
prior  owner  can  lay  claim,  it  is  considered  as  acquiring  the  quisition  of 
empire  or  sovereignty  of  it,  at  the  same  time  with  the  domain.  the  sove~ 

ri  •          XT.  r-'r  j  •    j  jiV  i.  reignty  in 

Jb  or,  since  the  nation  is  free  and  independent,  it  can  have  no  a  v^cant 
intention,  in  settling  in  a  country,  to  leave  to  others  the  right  country. 
of  command,  or  any  of  those  rights   that  constitute   sove- 
reignty.    The  whole  space  over  which  a  nation  extends  its 
government  becomes  the  seat  of  its  jurisdiction,  and  is  called      •  j  » 
its  territory. 

If  a  number  of  free  families,  scattered  over  an  independent  g  200.  Ano- 
country,  come  to  unite  for  the  purpose  of  forming  a  nation  or  ther  manner 
state,  they  altogether  acquire  the  sovereignty  over  the  whole  of  acquiring 
country  they  inhabit  :  for  they  were  previously  in  possession  ^eae™e^lre 
of  the  domain  —  a  proportional  share  of  it'  belonging  to  each  country. 
individual  family  :  and  since  they  are  willing  to  form  together 
a  political  society,  and  establish  a  public  authority,  which 
every  member  of  the  society  shall  be  bound  to  obey,  it  is 
evidently  their  intention  to  attribute  to  that  public  authority 
the  right  of  command  over  the  whole  country. 

All  mankind  have  an  equal  right  to  things  that  have  not  §  207.  How 
yet  fallen  into  the  possession  of  any  one  ;  and  those  things  a  nati.on  aP- 
belong  to  the   person  who   first  takes  possession  of  them.  J^JJjJJJ6* 
When,  therefore,  a  nation  finds  a  country  uninhabited,  and  ^rl  coun- 
without  an  owner,  it  may  lawfully  take  possession  of  it  :  and,  try. 
after  it  has  sufficiently  made  known  its  will  in  this  respect,  it 
cannot  be  deprived  of  it  by  another  nation.     Thus  navigators 
going  on  voyages  of  discovery,  furnished  with  a  commission 
from  their  sovereign,  and  meeting  with  islands  or  other  lands 
in  a  desert  state,  have  taken  possession  of  them  in  the  name 
of  their  nation  :  and  this  title  has  been  usually  respected, 
provided  it  was  soon  after  followed  by  a  real  possession. 

But  it  is  questioned  whether  a  nation  can,  by  the  bare  act?  208.    A 
of  taking  possession,  appropriate  to  itself  countries  which  it  question  on 
does  not  really  occupy,  and  thus  engross  a  much  greater  ex-  this  8ubJect 
tent  of  territory  than  it  is  able  to  people  or  cultivate.     It  is 
not  difficult  to  determine  that  such  a  pretension  would  be  an 
absolute  infringement  of  the  natural  rights  of  men,  and  re- 

P2  173 


ESTABLISHMENT    OF    A   NATION   IN   A    COUNTRY. 


BOOK  i.     pugnant  to  the  views  of  nature,  which,  having  destined  tho 
CHAP._XVIII.  wno]e  earth  to  supply  the  wants  of  mankind  in  general,  gives 
no  nation  a  right  to  appropriate  to  itself  a  country,  except 
for  the  purpose  of  making  use  of  it,  and  not  of  hindering 
others  from  deriving  advantage  from  it.     The  law  of  nations 
will,  therefore,  not  acknowledge  the  property  and  sovereignty 
of  a  nation  over  any  uninhabited  countries,  except  those  of 
which  it  has  really  taken  actual  possession,  in  which  it  has 
formed  settlements,  or  of  which  it  makes  actual  use.     In  ef- 
fect, when  navigators  have  met  with  desert  countries  in  which 
[  100  ]  those  of  other  nations  had,  in  their  transient  visits,  erected 
some  monument  to   show  their  having  taken  possession  of 
them,  they  have  paid  as  little  regard  to  that  empty  ceremony 
as  to  the  regulation  of  the  popes,  who  divided  a  great  part 
of  the  world  between  the  crowns  of  Castile  and  Portugal.* 
g  209.  Who-      There  is  another  celebrated  question,  to  which  the  disco- 
tiier  it  bo     verv  Of  the  New  World  has  principally  given  rise.    It  is  asked 
"ossess^      whether  a  nation  may  lawfully  take  possession  of  some  part 
part  of  a      of  a  vast  country,  in  which  there  are  none  but  erratic  nations 
country  in-  whose  scanty  population  is  incapable  of  occupying  the  whole  ? 
have  already  observed  (§  81),  in  establishing  the  obliga- 
^Q  cultivate  the  earth,  that  those  nations  cannot  exclu- 


habited  on 
by  a  few 
wandering 
tribes. 


*  Those  decrees  being  of  a  very  sin-  pope  excepts  only  what  might  be  in  the 
gular  nature,  and  hardly  anywhere  to  be  possession  of  some  other  Christian 
found  but  in  very  scarce  books,  the  prince  before  the  year  1493;  as  if  ho 
reader  will  not  be  displeased  with  see-  had  a  greater  right  to  give  what  be- 
ing here  an  extract  of  them.  longed  to  nobody,  and  especially  what 

The  bull  of  Alexander  VI.  by  which  was  possessed  by  the  American  nations. 

he  gives  to  Ferdinand  and  Isabella,  king  Ho  adds  :     "Ac  quibuscunque  personis 

and  queen  of  Castile  and  Arragon,  the  ctijuscunquc  dignitatis,  etiam  imperialis 

New  World,  discovered  by  Christopher  et  regalis,  status,  gradus,  ordinis,  vel 

Columbus.  conditionis,  sub  excommuuicationis  latse 

"Motu    proprio"    (says     the    pope),  sententias    poena,    quam     eo     ipso,    si 

"  non  ad  vestram,  vel  alterius  pro  vobis  contra    fecerint,    incurrant,    districtius 

super   hoc   nobis    oblato   petitionis  in-  inhibeinus  no  ad  insulas  et  terras  firmas 

stantiam,  sod  de   nostra  mera  libcrali-  inventas  et  inveniendas,  dctectas  et  do- 

tate,  et  ex  certa  scientia,  ac  de  aposto-  tegendas,   versus   occidentem   et  ineri- 

licas   potestatis   plenitudine,  omnes  in-    diem pro  mercibus  habendis, 

sulas  et  terras  firmas,  inventas  et  inve-  vel  quavis  alia  de  causa,  accedere  prae- 

niendas,  detectas  et  detegendas,  versus  sumant  absque  vestra  ac  haeredum  ot 

occidentem    et  meridiem,"  (drawing  a  successorum     vestrorum     prajditcorum 

line   from  one  pole  to  the  other,  at  a  licentia    special!,    &c.      Datum   Roma3 

hundred  leagues   to   the   west    of  the  apud  S.  Petrum  anno  1493.  IV.  nonas 

Azores,)  "auctoritate  omnipotentis  Dei  Mnji,    Pontific.    nostri     anno    prinio." 
nobis    in    beato     Petro    concessa,    ac 
vicariatis    Jesu   Christ!,  qua  fungimur 


in  terris,  cum  omnibus  illarum   domi- 


Leibnitii    Codex   Juris  Gent.  Diplomat. 

203. 

See  ibid.  (Diplom.  165),  the  bull  by 
niis,  civitatibus,  <fec.,  vobis,  haeredibus-  which  pope  Nicholas  V.  gave  to  Al- 
que  et  successoribus  vestris,  Castellae  phonso,  king  of  Portugal,  and  to  the 
et  Legionis  regibus,  in  perpetuum  tc-  infant  Henry,  the  sovereignty  of  Gui- 
nore  prsesentium  donamus,  concedimus,  nea,  and  the  power  of  subduing  the 
assignamus,  vosque  ot  hseredes  ac  sue-  barbarous  nations  of  those  countries, 
cessores,  praefatos,  illorum  dominos,  cum  forbidding  any  other  to  visit  that  conn- 
plena  libera  et  omni  moda  potestate,  try  without  the  permission  of  Portugal, 
auctoritate  et  jurisdictiono,  facimus,  This  act  is  dated  Rome,  on  the  8th  of 
constituimus,  et  deputamus."  The  January,  1454. 
174 


OF   OUR   NATIVE   COUNTRY,    ETC.  100 

sively  appropriate  to  themselves  more  land  than  they  have  BOOK  i. 
occasion  for,  or  more  than  they  are  able  to  settle  and  culti- CHAP'  XY1U: 
vate.  Their  unsettled  habitation  in  those  immense  regions 
connot  be  accounted  a  true  and  legal  possession ;  and  the 
people  of  Europe,  too  closely  pent  up  at  home,  finding  land 
of  which  the  savages  stood  in  no  particular  need,  and  of 
which  they  made  no  actual  and  constant  use,  were  lawfully 
entitled  to  take  possession  of  it,  and  settle  it  with  colonies. 
The  earth,  as  we  have  already  observed,  belongs  to  mankind 
in  general,  and  was  designed  to  furnish  them  with  subsist- 
ence :  if  each  nation  had,  from  the  beginning,  resolved  to 
appropriate  to  itself  a  vast  country,  that  the  people  might 
live  only  by  hunting,  fishing,  and  wild  fruits,  our  globe  would 
not  be  sufficient  to  maintain  a  tenth  part  of  its  present  inha-  [  101  ] 
bitants.  We  do  not,  therefore,  deviate  from  the  views  of  na- 
ture, in  confining  the  Indians  within  narrower  limits.  How- 
ever, we  cannot  help  praising  the  moderation  of  the  English 
Puritans  who  first  settled  in  New  England;  who,  notwith- 
standing their  being  furnished  with  a  charter  from  their  sove- 
reign, purchased  of  the  Indians  the  land  of  which  they  in- 
tended to  take  possession.*  This  laudable  example  was  fol- 
lowed by  William  Penn,  and  the  colony  of  Quakers  that  he 
conducted  to  Pennsylvania. 

When  a  nation  takes  possession  of  a  distant  country,  and  ?  210.    Co- 
settles  a  colony  there,  that  country,  though  separated  fromlomes> 
the  principal  establishment,  or  mother-country,  naturally  be- 
comes a  part  of  the  state,  equally  with  its  ancient  possessions. 
Whenever,  therefore,  the  political  laws,  or  treaties,  make  no 
distinction  between  them,  every  thing  said  of  the  territory 
of  a  nation,  must  also  extend  to  its  colonies. 


CHAP.  XIX. 

OF  OUR  NATIVE  COUNTRY,  AND  SEVERAL  THINGS  THAT    CHAP,  six. 
RELATE  TO  IT. 

THE  whole  of  the  countries  possessed  by  a  nation  and  sub- §  211.  What 
ject  to  its  laws,  forms,  as  we  have  already  said,  its  territory,  is  our  coun- 
and  is  the  common  country  of  all  the  individuals  of  the  na-  tT?- 
tion.     We  have  been  obliged  to  anticipate  the  definition  of 
the  term,  native  country  (§  122),  because  our  subject  led  us 
to  treat  of  the  love  of  our  country — a  virtue  so  excellent  and 
so  necessary  in  a  state.      Supposing,  then,  this  definition  al- 
ready known,  it  remains  that  we  should  explain  several  things 
that  have  a  relation  to  this  subject,  and  answer  the  questions 
that  naturally  arise  from  it. 

*  History  of  the  English  Colonies  in  North  America. 


101  OF   OUR   NATIVE   COUNTRY,    ETC. 

BOOK  i.  The  citizens  are  the  members  of  the  civil  society ;  bound 
CHAP,  xix-  to  this  society  by  certain  duties,  and  subject  to  its  authority, 
§  212.  cm-  they  equally  participate  in  its  advantages.  The  natives,  or 
natural-born  citizens,  are  those  born  in  the  country,  of  pa- 
rents who  are  citizens.  As  the  society  cannot  exist  and  per- 
petuate itself  otherwise  than  by  the  children  of  the  citizens, 
those  children  naturally  follow  the  condition  of  their  fathers, 
and  succeed  to  all  their  rights.  The  society  is  supposed  to 
desire  this,  in  consequence  of  what  it  owes  to  its  own  preser- 
vation ;  and  it  is  presumed,  as  matter  of  course,  that  each 
citizen,  on  entering  into  society,  reserves  to  his  children  the 
right  of  becoming  members  of  it.  The  country  of  the  fa- 
thers is  therefore  that  of  the  children ;  and  these  become 
true  citizens  merely  by  their  tacit  consent.  We  shall  soon 
see  whether,  on  their  coming  to  the  years  of  discretion,  they 
may  renounce  their  right,  and  what  they  owe  to  the  society 
in  which  they  were  born.  I  say,  that,  in  order  to  be  of  the 
country,  it  is  necessary  that  a  person  be  born  of  a  father  who 
is  a  citizen ;  for,  if  be  is  born  there  of  a  foreigner,  it  will  be 
[  102  ]  only  the  place  of  his  birth,  and  not  his  country. 
?  213.  in-  The  inhabitants,  as  distinguished  from  citizens,  are  fo- 
habitants.  reigners,  who  are  permitted  to  settle  and  stay  in  the  country. 
Bound  to  the  society  by  their  residence,  they  are  subject  to 
the  laws  of  the  state  while  they  reside  in  it ;  and  they  are 
obliged  to  defend  it,  because  it  grants  them  protection,  though 
they  do  not  participate  in  all  the  rights  of  citizens.  They 
enjoy  only  the  advantages  which  the  law  or  custom  gives  them. 
The  perpetual  inhabitants  are  those  who  have  received  the 
right  of  perpetual  residence.  These  are  a  kind  of  citizens  of 
an  inferior  order,  and  are  united  to  the  society  without  par- 
ticipating in  all  its  advantages.  Their  children  follow  the 
condition  of  their  fathers ;  and,  as  the  state  has  given  to 
these  the  right  of  perpetual  residence,  their  right  passes  to 
their  posterity. 

g  214.   Na-      A  nation,  or  the  sovereign  who  represents  it,  may  grant  to 

turaiization.  a  foreigner  the  quality  of  citizen,  by  admitting  him  into  the 

(58)  body  of  the  political  society.     This  is  called  naturalization. 

There  are  some  states  in  which  the  sovereign  cannot  grant  to 

a  foreigner  all  the  rights  of  citizens, — for  example,  that  of 

(58)  See  fully  in  general,  and  of  39,  43,  45 ;  and  see  Reeves,  2d  ed.  328, 
naturalization  in  Great  Britain  in  par-  330,  and  37  Geo.  3,  c.  97. — C. 
ticular,  1  Chitty's  Commercial  Law,  {A  native  citizen  of  the  United  States 
123  to  131 ;  1  Bla.  Com.  369 ;  Bac.  Ab.  cannot  throw  off  his  allegiance  to  the 
Aliens.  A  naturalization  in  a  foreign  government,  without  an  Act  of  Con- 
country,  without  license,  will  not  dis-  gress  authorizing  him  to  do  so.  Miller 
charge  a  natural-born  subject  from  his  v.  The  Resolution,  2  Dall.  10;  Shanks  v. 
allegiance,  2  Chalmer's  Col.  Opin.  363.  Dupont,  3  Pet  S.  C.  Rep.  246 ;  Coxe  v. 
But  a  natural-born  subject  of  England,  Mcllvaine,  4  Cranch,  209 ;  The  Santis- 
naturalized  in  America,  was  holden  to  sitna  Trinidada,  7  Wheat.  Rep.  283 ; 
be  entitled  to  trade  as  an  American  The  United  States  v.  Gillies,  Peter's  C. 
subject  to  the  East  Indies,  8  Term  Rep.  C.  Rep.  159.} 
176 


OF   OUR   NATIVE   COUNTRY,  ETC.  102 

holding  public  offices — and  where,  consequently,  he  has  the     BOOK  i. 
power  of  granting  only  an  imperfect  naturalization.     It  is  CHAP-  XIX- 
here  a  regulation  of  the  fundamental  law,  which  limits  the 
power  of  the  prince.     In  other  states,  as  in  England  and 
Poland,  the  prince  cannot  naturalize  a  single  person,  without 
the  concurrence  of  the  nation,  represented  by  its  deputies. 
Finally,  there  are  states,  as,  for  instance,  England,  where  the 
single  circumstance  of  being  born  in  the  country  naturalizes 
the  children  of  a  foreigner. 

It   is  asked  whether  the  children  born  of  citizens  in  a  §215.  Chit- 
foreign  country  are  citizens?     The  laws  have  decided  thisdrenofciti- 
question  in  several  countries,  and  their  regulations  must  be  ^foreign1 "' 
followed.(59)     By  the  law  of  nature  alone,  children  follow  country, 
the  condition  of  their  fathers,  and  enter  into  all  their  rights 
(§  212) ;  the  place  of  birth  produces  no  change  in  this  parti- 
cular, and  cannot,  of  itself,  furnish  any  reason  for  taking 
from  a  child  what  nature  has  given  him;  I  say  "of  itself," 
for,  civil  or  political  laws  may,  for  particular  reasons,  ordain 
otherwise.     But  I  suppose  that  the  father  has  not  entirely 
quitted  his  country  in  order  to  settle  elsewhere.     If  he  has 
fixed  his  abode  in  a  foreign  country,  he  is  become  a  member 
of  another  society,  at  least  as  a  perpetual  inhabitant;  and 
his  children  will  be  members  of  it  also. 

As  to  children  born  at  sea,  if  they  are  born  in  those  parts  §  216.  Chil- 
of  it  that  are  possessed  by  their  nation,  they  are  born  in  the  dren  born  at 
country :  if  it  is  on  the  open  sea,  there  is  no  reason  to  make  sea* 
a  distinction  between  them  and  those  who  are  born  in  the 
country;  for,  naturally,  it  is  our  extraction,  not  the  place  of 
our  birth,  that  gives  us  rights:  and  if  the  children  are  born 
in  a  vessel  belonging  to  the  nation,  they  may  be  reputed  born 
in  its  territories ;  for,  it  is  natural  to  consider  the  vessels  of  a 
nation  as  parts  of  its  territory,  especially  when  they  sail  upon 
a  free  sea,  since  the  state  retains  its  jurisdiction  over  those 
vessels.  And  as,  according  to  the  commonly  received  custom, 
this  jurisdiction  is  preserved  over  the  vessels,  even  in  parts 
of  the  sea  subject  to  a  foreign  dominion,  all  the  children  born 
in  the  vessels  of  a  nation  are  considered  as  born  in  its  terri- 
tory. For  the  same  reason,  those  born  in  a  foreign  vessel 
are  reputed  born  in  a  foreign  country,  unless  their  birth  took 
place  in  a  port  belonging  to  their  own  nation :  for,  the  port 
is  more  particularly  a  part  of  the  territory ;  and  the  mother, 
though  at  that  moment  on  board  a  foreign  vessel,  is  not  on 
that  account  out  of  the  country.  I  suppose  that  she  and  her 
husband  have  not  quitted  their  native  country  to  settle  else- 
where. [  103  ] 

For  the  same  reasons  also,  children  born  out  of  the  coun-§2ir.  Chil 
try,  in  the  armies  of  the  state,  or  in  the  house  of  its  minister  at  d*en  born  i* 
a  foreign  court,  are  reputed  born  in  the  country ;  for  a  citi- the  armies 


of  the  state 


(59)  See  1  Chitty's  Commercial  Law,  114,  n.  1 ;  115,  n.  1. 
23 


103  OF    OUR    NATIVE    COUNTRY,  ETC. 

HOOK  i.     zen  who  is  absent  with  his  family,  on  the  service  of  the  state, 

CHAP,  xix.  but  still  dependent  on  it,  and  subject  to  its  jurisdiction,  can- 

or  in  the      not  be  considered  as  having  quitted  its  territory. 

house  of  its       Settlement  is  a  fixed  residence  in  any  place,  with  an  inten- 

Tforef r  at  t*on  of  a^waJs  staying  there.     A  man  does  not,  then,  esta- 

court!lgn      blish  his  settlement  in  any  place,  unless  he  makes  sufficiently 

§218.    Set- known  his  intention  of  fixing  there,  either  tacitly  or  by  an 

tlement.       express  declaration.     However,  this  declaration  is  no  reason 

why,  if  he  afterwards  changes  his  mind,  he  may  not  transfer 

his  settlement  elsewhere.     In  this  sense,  a  person  who  stops 

at  a  place  upon  business,  even  though  he  stay  a  long  time, 

has  only  a  simple  habitation  there,  but  has  no  settlement. 

Thus,  the  envoy  of  a  foreign  prince  has  not  his  settlement  at 

the  court  where  he  resides. 

The  natural,  or  original  settlement,  is  that  which  we  ac- 
quire by  birth,  in  the  place  where  our  father  has  his ;  and 
we  are  considered  as  retaining  it,  till  we  have  abandoned  it,  in 
order  to  choose  another.  The  acquired  settlement  (adsciti- 
tium]  is  that  where  we  settle  by  our  own  choice. 

§219.  Va-  Vagrants  are  people  who  have  no  settlement.  Conse- 
grants.  quently,  those  born  of  vagrant  parents  have  no  country,  since 
a  man's  country  is  the  place  where,  at  the  time  of  his  birth, 
his  parents  had  their  settlement  (§  122),  or  it  is  the  state  of 
which  his  father  was  then  a  member,  which  comes  to  the  same 
point ;  for,  to  settle  for  ever  in  a  nation,  is  to  become  a  mem- 
ber of  it,  at  least  as  a  perpetual  inhabitant,  if  not  with  all  the 
privileges  of  a  citizen.  We  may,  however,  consider  the  coun- 
try of  a  vagrant  to  be  that  of  his  child,  while  that  vagrant  is 
considered  as  not  having  absolutely  renounced  his  natural  or 
original  settlement. 

§220.  Whe-  Many  distinctions  will  be  necessary,  in  order  to  give  a  com- 
ther  a  per-  plete  solution  to  the  celebrated  question,  whether  a  man  may 
quit  his  country  or  the  society  of  which  he  is  a  member.  (60) 
country.  — !•  The  children  are  bound  by  natural  ties  to  the  society  in 
which  they  were  born ;  they  are  under  an  obligation  to  show 
themselves  grateful  for  the  protection  it  has  afforded  to  their 
fathers,  and  are  in  a  great  measure  indebted  to  it  for  their  birth 
and  education.  They  ought,  therefore,  to  love  it,  as  we  have 
already  shown  (§  122),  to  express  a  just  gratitude  to  it,  and 
requite  its  services  as  far  as  possible,  by  serving  it  in  turn. 
We  have  observed  above  (§  212),  that  they  have  a  right  to 
enter  into  the  society  of  which  their  fathers  were  members. 
[  104  ]  But  every  man  is  born  free ;  and  the  son  of  a  citizen,  when 
come  to  the  years  of  discretion,  may  examine  whether  it  be 
convenient  for  him  to  join  the  society  for  which  he  was  des- 
tined by  his  birth.  If  he  does  not  find  it  advantageous  to 
remain  in  it,  he  is  at  liberty  to  quit  it,  on  making  it  a  com* 

(60)  In  Great  Britain,  the  established     1  Bla.  C.  369,  3  Chit.  Com.  Law,  129 
maxim   is  nemo  potest  exuere  pat)~ium,     to  132. 
178 


OF   OUR   NATIVE   COUNTRY,    ETC.  104 

pensation  for  what  it  has  done  in  his  favour,*  and  preserv-    BOOK  i. 
ing,  as  far  as  his  new  engagements  will  allow  him,  the  senti-  CHAP,  xnc. 
ments  of  love  and  gratitude  he  owes  it.     A  man's  obligations 
to  his  natural  country  may,  however,  change,  lessen,  or  en- 
tirely vanish,  according  as  he  shall  have  quitted  it  lawfully, 
and  with  good  reason,  in  order  to  choose  another,  or  has 
been  banished  from  it  deservedly  or  unjustly,  in  due  form  of 
law  or  by  violence. 

2.  As  soon  as  the  son  of  a  citizen  attains  the  age  of  man- 
hood, and  acts  as  a  citizen,  he  tacitly  assumes  that  character ; 
his  obligations,  like  those  of  others  who  expressly  and  for- 
mally enter  into  engagements  with  society,  become  stronger 
and  more  extensive  :  but  the  case  is  very  different  with  re- 
spect to  him  of  whom  we  have  been  speaking.     When  a  so- 
ciety has  not  been  formed  for  a  determinate  time,  it  is  allow- 
able to  quit  it,  when  that  separation  can  take  place  without 
detriment  to  the  society.     A  citizen  m<r«y  therefore  quit  the 
state  of  which  he  is  a  member,  provided  it  be  not  in  such  a 
conjuncture  when  he  cannot  abandon  it  without  doing  it  a 
visible  injury.    But  we  must  here  draw  a  distinction  between 
what  may  in  strict  justice  be  done,  and  what  is  honourable 
and  conformable  to  every  duty — in  a  word,  between  the  in- 
ternal and  the  external  obligation.     Every  man  has  a  right 
to  quit  his  country,  in  order  to  settle  in  any  other,  when  by 
that  step  he  does  not  endanger  the  welfare  of  his  country. 
But  a  good  citizen  will  never  determine  on  such  a  step  with- 
out necessity,  or  without  very  strong  reasons.     It  is  taking 
a  dishonourable  advantage  of  our  liberty,  to  quit  our  asso- 
ciates upon  slight  pretences,  after  having  derived  considerable 
advantages  from  them ;  and  this  is  the  case  of  every  citizen, 
with  respect  to  his  country. 

3.  As  to  those  who  have  the  cowardice  to  abandon  their 
country  in  a  time  of  danger,  and  seek  to  secure  themselves, 
instead  of  defending  it,  they  manifestly  violate  the    social 
compact,  by  which  all  the  contracting  parties  engaged  to  de- 
fend themselves  in  a  united  body,  and  in  concert ;  they  are 
infamous  deserters,  whom  the  state  has  a  right  to    punish 
severely.f 


*  This  is  the  foundation  of  the  tax  moted  in  the  army  of  Saxony,  had,  with 

paid  on  quitting  a  country,  called,  in  the  permission  of  his  former  sovereign, 

Latin,  census  emigrations.  sold  the  property  he  possessed  in  Li- 

t  Charles  XII.  condemned  to  death  vonia.     He  had  therefore  quitted  his 

and  executed  General  Patkul,  a  native  own   country,  to   choose   another  (as 

of  Livonia,  whom  he  had  made  prisoner  every  free  citizen  is  at  liberty  to  do, 

in    an  engagement  with  the   Saxons,  except,  as  we  have  observed  above,  at 

But  the  sentence  and  execution  were  a  critical  moment,  when  the  circum- 

tt  violation  of  the  laws  of  justice.    Pat-  stances  of  his  country  require  the  aid 

Kul,  it  is  true,  had  been  born  a  subject  of  all  her  sons),  and  the  king  of  Sweden, 

of  the  king  of  Sweden ;  but  he  had  by  permitting  him  to  sell  his  property, 

quitted  his  native  country  at  the  age  hud  consented  to  his  emigration, 
of  twelve  years,  and  having  been  pro- 

179 


105  OF  OUR  NATIVE   COUNTRY,   ETC. 

BOOK  i.         In  a  time  of  peace  and  tranquillity,  when  the  country  has 
CHAP,  xi^  no  actuai  nee(j  Of  aii  ner  children,  the  very  welfare  of  the 


§  221.  How  state,  and  that  of  the  citizens,  requires  that  every  individual 
ma^absent  ^e  at  l^erty  to  travel  on  business,  provided  that  he  be  always 
himself  for  ready  to  return,  whenever  the  public  interest  recalls  him.    It 
a  time.        is  not  presumed  that  any  man  has  bound  himself  to  the  so- 
ciety of  which  he  is  a  member,  by  an  engagement  never  to 
leave  the  country  when  the  interest  of  his  affairs  requires  it, 
and  when  he  can  absent  himself  without  injury  to  his  country. 
§  222.  Vari-      The  political  laws  of  nations  vary  greatly  in  this  respect, 
ation  of  the  jn  S0me  nations,  it  is  at  all  times,  except  in  case  of  actual 
kwfhfthis  war'  a^owe^  to  every  citizen  to  absent  himself,  and  even  to 
respect.  (6i)  q11^  tne  country  altogether,  whenever  he  thinks  proper,  with- 
These  must  out  alleging  any  reason  for  it.     This  liberty,  contrary  in  its 
be  obeyed.    own  nature  to  the  welfare  and  safety  of  society,  can  nowhere 
be  tolerated  but  in  a  country  destitute  of  resources  and  inca- 
pable of  supplying  the  wants  of  its  inhabitants.     In  such  a 
country  there   can   only  be   an  imperfect  society ;   for   civil 
society  ought  to  be  capable  of  enabling  all  its  members  to 
procure,  by  their  labour  and  industry,  all  the  necessaries  of 
life :  unless  it  effects  this,  it  has  no  right  to  require  them  to 
devote  themselves  entirely  to  it.     In  some  other  states,  every 
citizen  is  left  at  liberty  to  travel  abroad  on  business,  but  not 
to  quit  his  country  altogether,  without  the  express  permission 
of  the  sovereign.     Finally,  there  are  states  where  the  rigour 
of  the  government  will  not  permit  any  one  Avhatsoever  to  go 
out  of  the  country  without  passports  in  form,  which  are  even 
not  granted  without  great  difficulty.     In  all  these  cases,  it  is 
necessary  to  conform  to  the  laws,  when  they  are  made  by  a 
lawful  authority.     But,  in  the  last-mentioned  case,  the  sove- 
reign abuses  his  power,  and  reduces  his  subjects  to  an  insup- 
portable slavery,  if  he  refuses  them  permission  to  travel  for 
their  own  advantage,  when  he  might  grant  it  to  them  without 
inconvenience,  and  without  danger  to  the  state.     Nay,  it  will 
presently  appear,  that,  on  certain  occasions,  he  cannot,  under 
any  pretext,  detain  persons  who  wish  to  quit  the  country, 
with  the  intention  of  abandoning  it  for  ever. 

§  223.  Cases  There  are  cases  in  which  a  citizen  has  an  absolute  right 
in  which  a  to  renounce  his  country,  and  abandon  it  entirely — a  right 
^  *  f°unde(l  on  reasons  derived  from  the  very  nature  of  the  social 
compact.  1.  If  the  citizen  cannot  procure  subsistence  in  his 
own  country,  it  is  undoubtedly  lawful  for  liim  to  seek  it  else- 
where. For,  political  or  civil  society  being  entered  into  only 
with  a  view  of  facilitating  to  each  of  its  members  the  means 
of  supporting  himself,  and  of  living  in  happiness  and  safety, 
it  would  be  absurd  to  pretend  that  a  member,  whom  it  cannot 
furnish  with  such  things  as  are  most  necessary,  has  not  a  right 
to  leave  it. 

(61)  See  post,  Book  II.  ch.  viii.  §  103,     p.  731  to  733,  as  to  writs  of  ne  exeat 
p.  174,  and  Chitty's  General  Practice,    rec/no. 


OF   OUR  NATIVE   COUNTRY,    ETC.  10ft 

2.  If  the  body  of  the  society,  or  he  who  represents  it,  ab-     BOOK  i. 
solutely  fail  to  discharge  their  obligations  towards  a  citizen,  CHAP-  XIX- 
the  latter  may  withdraw  himself.    For,  if  one  of  the  contract- 
ing parties  does  not  observe  his  engagements,  the  other  is  no 
longer  bound  to  fulfil  his ;  as  the  contract  is  reciprocal  be-  [  106  ] 
tween  the  society  and  its  members.     It  is  on  the  same  prin- 
ciple, also,  that  the  society  may  expel  a  member  who  violates 

its  laws. 

3.  If  the  major  part  of  the  nation,  or  the  sovereign  who 
represents  it,  attempt  to  enact  laws  relative  to  matters  in 
which  the  social  compact  cannot  oblige  every  citizen  to  sub- 
mission, those  who  are  averse  to  these  laws  have  a  right  to 
quit  the  society,  and  go  settle  elsewhere.  For  instance,  if  the 
sovereign,  or  the  greater  part  of  the  nation,  will  allow  but 
one  religion  in  the  state,  those  who  believe  and  profess  another 
religion  have  a  right  to  withdraw,  and  to  take  with  them  their 
families  and  effects.     For,  they  cannot  be  supposed  to  have 
subjected  themselves  to  the  authority  of  men,  in  affairs  of 
conscience  ;*  and  if  the  society  suffers  and  is  weakened  by 
their  departure,  the  blame  must  be  imputed  to  the  intolerant 
party ;  for  it  is  they  who  fail  in  their  observance  of  the  social 
compact — it  is  they  who  violate  it,  and  force  the  others  to  a 
separation.     We  have  elsewhere  touched  upon  some  other  in- 
stances of  this  third  case, — that  of  a  popular  state  wishing 
to  have  a  sovereign  (§  33),  and  that  of  an  independent  nation 
taking  the  resolution  to  submit  to  a  foreign  power  (§  195). 

Those  who  quit  their  country  for  any  lawful  reason,  with  1 224.  Emi- 
a  design  to  settle  elsewhere,  and  take  their  families  and  pro-  srants- 
perty  with  them,  are  called  emigrants. 

Their  right  to  emigrate  may  arise  from  several  sources.  I  225. 
1.  In  the  cases  we  have  just  mentioned  (§  223),  it  is  a  natural  So»rces  of 
right,  which  is  certainly  reserved  to  each  individual  in  the their  nsht' 
very  compact  itself  by.  which  civil  society  was  formed. 

2.  The  liberty  of  emigration  may,  in  certain  cases,  be  se- 
cured to  the  citizens  by  a  fundamental  law  of  the  state.    The 
citizens  of  Neufchatel  and  Valangin  in  Switzerland  may  quit 
the  country  and  carry  off  their  effects  at  their  own  pleasure, 
without  even  paying  any  duties. 

3.  It  may  be  voluntarily  granted  them  by  the  sovereign. 

4.  This  right  may  be  derived  from  some  treaty  made  with 
a  foreign  power,  by  which  a  sovereign  has  promised  to  leave 
full  liberty  to  those  of  his  subjects,  who,  for  a  certain  reason 
— on  account  of  religion,  for  instance — desire  to  transplant 
themselves  into  the  territories  of  that  power.     There  are 
such  treaties  between  the  German  princes,  particularly  for 
Ceases  in  which  religion  is  concerned.     In  Switzerland  like- 
wise, a  citizen  of  Bern  who  wishes  to  emigrate  to  Fribourg, 
and  there  profess  the  religion  of  the  place,  and,  reciprocally, 

*  See  above,  the  chapter  on  Religion. 

Q  181 


106 


OF   OUR   NATIVE   COUNTRY,   ETC. 


BOOK  i.     a  citizen  of  Fribourg  who,  for  a  similar  reason,  is  desirous  of 
CHAP.  xix.  rem0vmg  t0  Bern,  has  a  right  to  quit  his  native  country,  and 
carry  off  with  him  all  his  property. 

It  appears  from  several  passages  in  history,  particularly 
the  history  of  Switzerland  and  the  neighbouring  countries, 
that  the  law  of  nations,  established  there  by  custom  some 
ages  back,  did  not  permit  a  state  to  receive  the  subjects  of 
another  state  into  the  number  of  its  citizens.  This  vicious 
[  107  ]  custom  had  no  other  foundation  than  the  slavery  to  which  the 
people  were  then  reduced.  A  prince,  a  lord,  ranked  his  sub- 
jects under  the  head  of  his  private  property ;  he  calculated 
their  number  as  he  did  that  of  his  flocks ;  and,  to  the  disgrace 
of  human  nature,  this  strange  abuse  is  not  yet  everywhere 
eradicated. 

I  226.  If  If  the  sovereign  attempts  to  molest  those  who  have  a  right 
the  sove-  to  emigrate,  he  does  them  an  injury ;  and  the  injured  indi- 
reign  m-  yiduals  may  lawfully  implore  the  protection  of  the  power  who 

fringes  their .         .-,•,.          «!  .      '.•,      *          m,  ,  T-"      j      •     TITM 

right,  he  in- 1S  willing  to  receive  them.  Thus  we  have  seen  Frederic  Wil- 
jures'them.  liam,  king  of  Prussia,  grant  his  protection  to  the  emigrant 

Protestants  of  Saltzburgh. 

g  227.  Sup-       The  name  of  supplicants  is  given  to  all  fugitives  who  im- 
piicants.       plore  the  protection   of  a  sovereign   against  the  nation  or 
prince  they  have  quitted.     We  cannot  solidly  establish  what 
the  law  of  nations  determines  with  respect  to  them,  until  we 
have  treated  of  the  duties  of  one  nation  towards  others. 
§  228.    Ex-      Finally,  exile  is  another  manner  of  leaving  our  country, 
lie  and  ba-   An  exiie  js  a  man  driven  from  the  place  of  his  settlement,  or 
ient     constrained  to  quit  it,  but  without  a  mark  of  infamy.     Ba- 
nishment is  a  similar  expulsion,  with  a  mark  of  infamy  an- 
nexed.*    Both  may  be  for  a  limited  time,  or  for  ever.     If  an 
exile,  or  banished  man,  had  his  settlement  in  his  own  country, 
he  is  exiled  or  banished  from  his  country.     It  is,  however, 
proper  to  observe  that  common  usage  applies  also  the  terms 
exile  and  banishment  to  the  expulsion  of  a  foreigner  who  is 
driven  from  a  country  where  he  had  no  settlement,  and  to 
which  he  is,  either  for  a  limited  time,  or  for  ever,  prohibited 
to  return. 

As  a  man  may  be  deprived  of  any  right  whatsoever  by  way 
of  punishment — exile,  which  deprives  him  of  the  right  of 
dwelling  in  a  certain  place,  may  be  inflicted  as  a  punishment : 
banishment  is  always  one ;  for,  a  mark  of  infamy  cannot  be 
set  on  any  one,  but  with  a  view  of  punishing  him  for  a  fault, 
either  real  or  pretended. 

When  the  society  has  excluded  one  of  its  members  by  a 

*  The  common  acceptation   of  these  by  some  disgrace  at  court."    The  reason 

two  terms  is  not  repugnant  to  our  ap-  is  plain  :  such  a  condemnation  from  the 

plication  of  them.      The   French   aca-  tribunal    of  justice    entails   infamy  on 

demy  says,   "Banishment  is   only   ap-  the   emigrant;    whereas   a   disgrace  at 

plied  to   condemnations  in   duo  course  court  does  not  usually  involve  the  same 

of  law.     Exile  is  only  an  absence  caused  consequence. 
182 


OF   OUK   NATIVE    COUNTRY,  ETC. 

perpetual  banishment,  he  is  only  banished  from  the  lands  of     BOOA  i. 
that  society,  and  it  cannot  hinder  him  from  living  wherever  CHA1>-  xlx- 
else  he  pleases  ;  for,  after  having  driven  him  out,  it  can  no 
longer  claim  any  authority  over  him.     The  contrary,  how- 
ever, may  take  place  by  particular  conventions  between  two 
or  more  states.     Thus,  every  member  of  the  Helvetic  con- 
federacy may  banish  its  own  subjects  out  of  the  territories  of 
Switzerland  in  general ;  and  in  this  case  the  banished  person 
will  not  be  allowed  to  live  in  any  of  the  cantons,  or  in  the 
territories  of  their  allies. 

Exile  is  divided  into  voluntary  and  involuntary.     It  is  vo- 
luntary, when  a  man  quits  his  settlement  to  escape  some 
punishment,  or    to    avoid  some  calamity — and  involuntary,    [  108  ] 
when  it  is  the  effect  of  a  superior  order. 

Sometimes  a  particular  place  is  appointed,  where  the  exiled 
person  is  to -remain  during  his  exile ;  or  a  certain  space  is 
particularized,  which  he  is  forbid  to  enter.  These  various 
circumstances  and  modifications  depend  on  him  who  has  the 
power  of  sending  into  exile. 

A  man,  by  being  exiled  or  banished,  does  not  forfeit  the  §229.  The 
human  character,  nor  consequently  his  right  to  dwell  some-  £xllf  *n<* 
where  on  earth.     He  derives  this  right  from  nature,  or  rather  n^have  a 
from  its  Author,  who  has  destined  the  earth  for  the  habitation  right  to  live 
of  mankind ;  and  the  introduction  of  property  cannot  have  somewhere, 
impaired  the  right  which  every  man  has  to  the  use  of  such 
things  as  are  absolutely  necessary — a  right  which  he  brings 
with  him  into  the  world  at  the  moment  of  his  birth. 

But  though  this  right  is  necessary  and  perfect  in  the  gene-  §  230.  Na- 
ral  view  of  it,  we  must  not  forget  that  it  is  but  imperfect  with ture  of  *h» 
respect  to  each  particular  country.     For,  on  the  other  hand,  nght' 
every  nation  has  a  right  to  refuse  admitting    a    foreigner 
into  her  territory,  when  he  cannot  enter  it  without  exposing 
the  nation  to  evident  danger,  or  doing  her  a  manifest  injury. 
What  she  owes  to  herself,  the  care  of  her  own  safety,  gives 
her  this  right ;  and,  in  virtue  of  her  natural  liberty,  it  be- 
longs to  the  nation  to  judge,  whether  her  circumstances  will 
or  will  not  justify  the  admission  of  that  foreigner  (Prelim. 
§  16).     He  cannot,  then,  settle  by  a  full  right,  and  as  he 
pleases,  in  the  place  he  has  chosen,  but  must  ask  permission 
of  the  chief  of  the  place ;  and,  if  it  is  refused,  it  is  his  duty 
to  submit. 

However,  as  property  could  not  be  introduced  to  the  pre-  §  231.  Duty 
judice  of  the  right  acquired  by  every  human  creature,  of  not  °f  natjons 
being  absolutely  deprived  of  such  things  as  are  necessary — tnwar(1s 
no  nation  can,  Avithout  good  reasons,  refuse  even  a  perpetual 
residence  to  a  man  driven  from  his  country.    But,  if  particular 
and  substantial  reasons  prevent  her  from  affording  him  an 
asvlum,  this  man  has  no  longer  any  right  to  demand  it — be- 
cause, in  such  a  case,  the  country  inhabited  by  the  nation 

183 


towards 
them. 


108  OF   OUR   NATIVE   COUNTRY,   ETC. 

BOOK  i.  cannot,  at  the  same  time,  serve  for  her  own  use,  and  that  of 
CHAP,  xix.  tkjs  forejgneri  Now,  supposing  even  that  things  are  still  in 
common,  nobody  can  arrogate  to  himself  the  use  of  a  thing 
which  actually  serves  to  supply  the  wants  of  another.  Thus, 
a  nation,  whose  lands  are  scarcely  sufficient  to  supply  the 
wants  of  the  citizens,  is  not  obliged  to  receive  into  its  territo- 
ries a  company  of  fugitives  or  exiles.  Thus,  it  ought  even 
absolutely  to  r' ject  them,  if  they  are  infected  with  a  conta- 
gious disease.  Thus,  also,  it  has  a  right  to  send  them  else- 
where, if  it  has  just  cause  to  fear  that  they  will  corrupt  the 
manners  of  the  citizens,  that  they  will  create  religious  disturb- 
ances, or  occasion  any  other  disorder,  contrary  to  the  public 
safety.  In  a  word,  it  has  a  right,  and  is  even  obliged,  to 
follow,  in  this  respect,  the  suggestions  of  prudence.  But 
this  prudence  should  be  free  from  unnecessary  suspicion 
and  jealousy ;  it  should  not  be  carried  so  far  as  to  refuse  a 
[  109  ]  retreat  to  the  unfortunate,  for  slight  reasons,  and  on  ground- 
less and  frivolous  fears.  The  means  of  tempering  it  will  be, 
never  to  lose  sight  of  that  charity  and  commiseration  which 
are  due  to  the  unhappy.  We  must  not  suppress  these 
feelings  even  for  those  who  have  fallen  into  misfortune 
through  their  own  fault.  For,  we  ought  to  hate  the  crime, 
but  love  the  man,  since  all  mankind  ought  to  love  each 
other. 

e  232.  A  If  an  exiled  or  banished  man  has  been  driven  from  his 
nation  can-  country  for  any  crime,  it  does  not  belong  to  the  nation  in 
he  has  taken  refuge  to  punish  him  for  that  fault  com- 
-  in  a  foreign  country.  For,  nature  does  not  give  to 

mitted  out    men  or  to  nations  any  right  to  inflict  punishment,  except  for 
of  its  terri-  their  own  defence  and  safety  (§  169) ;  whence  it  follows  that 
tories;         we  cannot  punish  any  but  those  by  whom  we  have  been  in- 
jured. 

I  233.    ex-       But  this  very  reason  shows,  that,  although  the  justice  of 
cept  such     each  nation  ought  in  general  to  be  confined  to  the  punishment 
as  affect  the  Of  crimes  committed  in  its  own  territories,  we  ought  to  except 
safetyTf      fr°m  this  rule  those  villains,  who,  by  the  nature  and  habitual 
mankind,     frequency  of  their  crimes,  violate  all  public  security,  and  de- 
clare themselves  the  enemies  of  the  human  race.     Poisoners, 
assassins,  and  incendiaries  by  profession,  may  be  exterminated 
wherever  they  are  seized;   for  they  attack   and   injure   all 
nations  by  trampling  under  foot  the  foundations  of  their  com- 
mon safety.     Thus,  pirates  are  sent  to  the  gibbet  by  the  first 
into  whose  hands  they  fall.     If  the  sovereign  of  the  country 
where  crimes  of  that  nature  have  been,  committed,  reclaims 
the  perpetrators  of  them,  in  order  to  bring  them  to  punish- 
men,  they  ought  to  be  surrendered  to  him,  as  being  the 
person   who    is    principally    interested    in    punishing   them 
in  an  exemplary  manner.      And  as  it   is   proper  to  have 
criminals  regularly  convicted  by  a  trial  in  due  form  of  law, 

184 


OF   PUBLIC,   COMMON,   AND   PRIVATE   PROPERTY.  109 

S   a   S< 
lass  t 
mitted.  (62) 


this    is  a  second    reason    for  delivering   up  malefactors  of     BOOK  i. 
that  class  to  the  states  where  their  crimes  have  been  com-  CHAP-  XIX. 


CHAP.  XX. 

OP   PUBLIC,    COMMON,   AND   PRIVATE   PROPERTY. 


LET  us  now  see  what  is  the  nature  of  the  different  things  §  234.  What 
contained  in  the  country  possessed  by  a  nation,  and  endeavour the  Romans 
to  establish  the  general  principles  of  the  law  by  which  they  "^^J 
are  regulated.     This  subject  is  treated  by  civilians  under  thec°" 
title  de  rerum  divisione.  There  are  things  which  in  their  own 
nature  cannot  be  possessed :  there  are  others,  of  which  nobody 
claims  the  property,  and  which  remain  common,  as  in  their 
primitive  state,  when  a  nation  takes  possession  of  a  country : 
the  Roman  lawyers  called  those  things  res  communes,  things 
common :  such  were,  with  them,  the  air,  the  running  water, 
the  sea,  the  fish,  and  wild  beasts. 

Every  thing  susceptible  of  property  is  considered  as  be-  ?  235.   Ag- 
longing  to  the  nation  that  possesses  the  country,  and  as  form-  sregate 
ing  the  aggregate  mass  of  its  wealth.     But  the  nation  does  we*lth  of  * 

11      i  i  •  i  mi  nation,  and 

not  possess  all  those  things  in  the  same  manner.  Those  not  jts  divisions, 
divided  between  particular  communities,  or  among  the  indi-  [  HO  ] 
viduals  of  a  nation,  are  called  public  property.  Some  are 
reserved  for  the  necessities  of  the  state,  and  form  the  demesne 
of  the  crown,  or  of  the  republic :  others  remain  common  to 
all  the  citizens,  who  take  advantage  of  them,  each  according 
to  his  necessities,  or  according  to  the  laws  which  regulate 
their  use ;  and  these  are  called  common  property.  There  are 
others  that  belong  to  some  body  or  community,  termed  joint 
property,  res  universitatis  ;  and  these  are,  with  respect  to  this 
body  in  particular,  what  the  public  property  is  with  respect 
to  the  whole  nation.  As  the  nation  may  be  considered  as  a 
great  community,  we  may  indifferently  give  the  name  of  com- 
mon property  to  those  things  that  belong  to  it  in  common,  in 

(62)  A  distinction  has  usually  been  9  Barn.  &  Cress.  446.  {A  foreign 
taken  between  capital  offences  and  mere  government  has  no  right,  by  the  Law 
misdemeanors,  and  for  one  state  to  al-  of  Nations,  to  demand  of  the  govern- 
low  the  taking  and  removing  an  offen-  ment  of  the  United  States  a  surrender 
der  of  the  former  class  back  into  the  of  a  citizen  or  subject  of  such  foreign 
country  where  the  offence  was  com-  government,  who  has  committed  a  crime 
mitted,  in  order  to  take  his  trial  in  the  in  his  own  country.  Such  a  right  can 
latter,  but  not  so  in  case  of  misdemean-  only  exist  by  treaty.  Comm.  v.  Deacon, 
ore.  But  sometimes,  as  upon  a  charge  10  Serg.  &  Raw.  125  ;  Case  of  Dos  Santos, 
of  perjury,  a  foreign  country  will  allow  2  Brocken.  Rep.  493.  The  Case  of 
the  removal  of  an  offender  even  in  case  Hobins,  Bee's  Rep.  266,  was  under  the 
of  a  misdemeanor.  See  Ex parte  Scott,  treaty  with  Great  Britain.} 

24  2  U  185 


110  OF   PUBLIC,    COMMON,    ANP 

BOOK  i.    such  a  manner  that  all  the  citizens  may  make  use  of  them, 
CHAP.  xx.  an(j  £Q  those  that  are  possessed  in  the  same  manner  by  a  body 
or  community :  the  same  rules  hold  good  with  respect  to  both. 
Finally,  the  property  possessed  by  individuals  is  termed  pri- 
vate property,  res  singulorem. 

%  236.    Two      When  a  nation  in  a  body  takes  possession  of  a  country, 
ways  of  ac-  every  thing  that  is  not  divided  among  its  members  remains 
qumng        common  to  the  whole  nation,  and  is  called  public  property. 
There  is  a  second  way  whereby  a  nation,   and,  in  general, 
every  community,  may  acquire  possessions,  viz.  by  the  will 
of  whosoever  thinks  proper  to  convey  to  it,  under  any  title 
whatsoever,  the  domain  or  property  of  what  he  possesses. 
§  237.    The      As  soon  as  the  nation  commits  the  reins  of  government  to 
revenues  of  the  hands  of  a  prince,  it  is  considered  as  committing  to  him, 
the  public    a£  tne  same  time,  the  means  of  governing.     Since,  therefore, 
naturally 'aT  *ne   mcome  °f  the  public  property,   of  the  domain. of  the 
the  sove-      state,  is  destined  for  the  expenses  of  government,  it  is  natu- 
reign's  dis-  rally  at  the  prince's  disposal,  and  ought  always  to  be  consi- 
posal.          dered  in  this  light,  unless  the  nation  has,  in  express  terms, 
excepted  it  in  conferring  the  supreme  authority,  and  has  pro- 
vided in  some  other  manner  for  its  disposal,  and  for  the  ne- 
cessary expenses  of  the  state,  and  the  support  of  the  prince's 
person  and  household.     Whenever,  therefore,  the  prince  is 
purely  and  simply  invested  with  the  sovereign  authority,  it 
includes  a  full  discretional  power  to  dispose  of  the  public  re- 
venues.    The  duty  of  the  sovereign,  indeed,  obliges  him  to 
apply  those  revenues  only  to  the  necessities  of  the  state  ;  but 
he  alone  is  to  determine  the  proper  application  of  them,  and 
is  not  accountable  for  them  to  any  person. 

§  238.  The  The  nation  may  invest  the  superior  with  the  sole  use  of  i  :-i 
nation  may  common  possessions,  and  thus  add  them  to  the  domain  of  thfe 
grant  him  gtate.  It  may  even  cede  the  property  of  them  to  him.  But 

the  use  and        .  •  «  J    • 

property  of  *nis  cession  M  the  use  or  property  requires  an  express  act  of 

its  common  the  proprietor,  which  is  the  nation.     It  is  difficult  to  found  it 

possessions,  on  a  tacit  consent,  because  fear  too  often  hinders  the  subjects 

from  protesting   against   the   unjust  encroachments   of  the 

sovereign. 

§  239.    or        The  people  may  even  allow  the  superior  the  domain  of  the 
allow  him     things  they  possess  in  common,  and  reserve  to  themselves  the 
the  domain,  uge  Qf  tnem  jn  tne  wnole  or  in  part.     Thus,  the  domain  of  a 
t^ itself*3  the  river,  for  instance,  may  be  ceded  to  the  prince,  while  the  people 
use  of  them,  reserve  to  themselves  the  use  of  it  for  navigation,  fishing,  the 
[  111  ]  watering  of  cattle,  &c.     They  may  also  allow  the  prince  the 
sole  right  of  fishing,  &c.,  in  that  river.     In  a  word,  the  peo- 
ple may  cede  to  the  superior  whatever  right  they  please  over 
the  common  possessions  of  the  nation ;  but  all  those  particu- 
lar rights  rights  do  not  naturally,  and  of  themselves,  flow  from 
the  sovereignty. 

2  240.  If  the  income  of  the  public  property,  or  of  the  domain,  is 

Taxes.         not  sufficient  for  the  public  wants,  the  state  supplies  the  de- 

186 


PRIVATE   PROPERTY.  Ill 

ficiency  by  taxes.     These  ought  to  be  regulated  in  such  a    BOOK  i. 
manner,  that  all  the  citizens  may  pay  their  quota  in  proper-  CHAP-  x£i 
tion  to  their  abilities,  and  the  advantages  they  reap  from  the 
society.       All  the  members   of  civil  society  being  equally 
oblige'd  to   contribute,  according  to  their  abilities,  to  its  ad- 
vantage and  safety,  they  cannot  refuse  to  furnish  the  subsi- 
dies necessary  to  its  preservation,  when  they  are  demanded 
by  lawful  authority. 

Many  nations  have  been  unwilling  to  commit  to  the  prince  g  241.   The 
a  trust  of  so  delicate  a  nature,  or  to  grant  him  a  power  that  nation  may 
he  may  so  easily  abuse.     In  establishing  a  domain  for  the  fese™'e  *° 
support  of  the  sovereign  and  the  ordinary  expenses  of  the  right  of  imm 
state,  they  have  reserved  to  themselves  the  right  of  providing,  posing 
by   themselves    or   their   representatives,   for    extraordinary  them, 
wants,  in  imposing  taxes  payable  by  all  the  inhabitants.     In 
England,  the  king  lays  the  necessities  of  the  state  before  the 
parliament ;  that  body,  composed  of  the  representatives  of 
the  nation,  deliberates,  and,  with  the  concurrence  of  the  king, 
determines  the  sum  to  be  raised,  and  the  manner  of  raising 
it.  (63)     And  of  the  use  the  king  makes  of  the  money  thus 
raised,  that  same  body  obliges  him  to  render  it  an  account. 

In  other  states,  where  the  sovereign  possesses  the  full  and  g  242.    Of 
absolute  authority,  it  is  he  alone  that  imposes  taxes,  regulates  the  sove- 
the  manner  of  raising  them,  and  makes  use  of  them  as  hereignyho 
thinks  proper,  without  giving  an  account  to  anybody.     The 
French   king  at  present  enjoys  this  authority,  (64)  with  the 
simple  formality  of  causing  his  edicts  to  be  registered  by  the 
parliament ;   and  that  body  has  a  right  to  make  humble  re- 
monstrances, if  it  sees  any  inconveniences  attending  the  im- 
position ordered  by  the  prince : — a  wise  establishment  for 
causing  truth,  and  the  cries  of  the  people,  to  reach  the  ears 
of  the  sovereign,  and  for  setting  some  bounds  to  his  extrava- 
gance, or  to  the  avidity  of  the  ministers  and  persons  con- 
cerned in  the  revenue.* 

(63)  All  money  bills,  imposing  a  tax,  dis.     But  Peter,  Count  de  Lara,  vigor- 
must  originate  in  and  be  passed  by  the  ously  opposed  the   measure,  "  contrac- 
House    of    Commons,   and   afterwards  taque  nobilium  manu,  ex  conventu  dis- 
submitted  to  the  lords  and  the  king  for  cedit,  armis  tueri  paratus  partam  armis 
their  sanction,  before  they  can  become  et   virtute   a   majoribus    immunitatem, 
law.  neque    passurum     affirmans    nobilitatis 

(64)  This  was,  of  course,  when  Vattel  opprimendae    atque    novis    vectigalibus 
wrote,  and  before  the  Revolution.  vexandae  ab  eo  aditu  initium  fieri ;  Mau- 

*  Too  great  attention  cannot  be  ros  opprimere  non  esse  tanti,  ut  gravi- 
used  in  watching  the  imposition  of  ori  servitute  rempublieam  implicari  si- 
taxes,  which,  once  introduced,  not  only  nant.  Rex,  periculo  permotus,  ab  ea 
continue,  but  are  so  easily  multiplied. —  cogitatione  desistit.  Petrum  nobiles, 
Alphonso  VIII.  king  of  Castile,  be-  consilio  communicato,  quotannis  convi- 
sieging  a  city  belonging  to  the  Moors  vio  excipere  decreverunt,  ipsum  et  pos- 
(Concham  urbein  in  Celtiberis),  and  teros, — navatse  operee  mercedem,  rei 
being  in  want  of  money,  applied  to  the  gestaj  bons-e  posteritati  monumentum, 
states  of  his  kingdom  for  permission  to  documentumque  ne  quavis  occasione 
impose,  on  every  free  inhabitant,  a  jus  libertatis  imminui  patiantur."  MA- 
capitation-tax  of  five  golden  marave-  RIAXA. 

187 


112  OF   PUBLIC,    COMMON,   AND 

BOOK  i.         The  prince  who  is  invested  with  the  power  of  taxing  his 
CHAP.  xx.  pe0pie  OUght  by  no  means  to  consider  the  money  thus  raised 


g  243.  Du-  as  his  own  property.  He  ought  never  to  lose  sight  of  the  end 
ties  of  the  for  -which  this  power  was  granted  him :  the  nation  was  willing 
*°  ena^e  n™  *°  provide,  as  it  should  seem  best  to  his  wisdom, 
for  the  necessities  of  the  state.  If  he  diverts  this  money  to 
other  uses, — if  he  consumes  it  in  idle  luxury,  to  gratify  his 
pleasures,  to  satiate  the  avarice  of  his  mistresses  and  favour- 
ites,— we  hesitate  not  to  declare  to  those  sovereigns  who  are 
still  capable  of  listening  to  the  voice  of  truth,  that  such  a  one 
is  not  less  guilty,  nay,  that  he  is  a  thousand  times  more  so, 
than  a  private  person  who  makes  use  of  his  neighbours'  pro- 
perty to  gratify  his  irregular  passions.  Injustice,  though 
screened  from  punishment,  is  not  the  less  shameful, 
g  244.  Emi-  Every  thing  in  the  political  society  ought  to  tend  to  the 
nent  domain  good  of  the  community ;  and,  since  even  the  persons,  of  the 
thHove  to  citizens  are  subject  to  this  rule,  their  property  cannot  be  ex- 
reignty.  cepted.  The  state  could  not  subsist,  or  constantly  administer 
the  public  affairs  in  the  most  advantageous  manner,  if  it  had 
not  a  power  to  dispose  occasionally  of  all  kinds  of  property 
subject  to  its  authority.  It  is  even  to  be  presumed,  that,  when 
the  nation  takes  possession  of  a  country,  the  property  of  cer- 
tain things  is  given  up  to  the  individuals  only  with  this  reserve. 
The  right  which  belongs  to  the  society,  or  to  the  sovereign,  of 
disposing,  in  case  of  necessity,  and  for  the  public  safety,  of  all 
the  wealth  contained  in  the  state,  is  called  the  eminent  domain. 
It  is  evident  that  this  right  is,  in  certain  cases,  necessary  to 
him  who  governs,  and  consequently  is  a  part  of  the  empire,  or 
sovereign  power,  and  ought  to  be  placed  in  the  number  of  the 
prerogatives  of  majesty  (§  45).  When,  therefore,  the  people 
confer  the  empire  on  any  one,  they  at  the  same  time  invest 
him  with  the  eminent  domain,  unless  it  be  expressly  reserved. 
Every  prince,  who  is  truly  sovereign,  is  invested  with  this  right 
when  the  nation  has  not  excepted  it, — however  limited  his 
authority  may  be  in  other  respects. 

If  the  sovereign  disposes  of  the  public  property  in  virtue  of 
his  eminent  domain,  the  alienation  is  valid,  as  having  been  made 
with  sufficient  powers. 

When,  in  a  case  of  necessity,  he  disposes  in  like  manner  of 
the  possessions  of  a  community,  or  an  individual,  the  aliena- 
tion will,  for  the  same  reason,  be  valid.  But  justice  requires 
that  this  community,  or  this  individual,  be  indemnified  at  the 
public  charge :  and  if  the  treasury  is  not  able  to  bear  the 
expense,  all  the  citizens  are  obliged  to  contribute  to  it ;  for, 
the  burdens  of  the  state  ought  to  be  supported  equally,  or  in 
[  113  ]  a  just  proportion.  The  same  rules  are  applicable  to  this  case 
as  to  the  loss  of  merchandise  thrown  overboard  to  save  the 
vessel. 

a  245.    GO-      Besides  the  eminent  domain,  the  sovereignty  gives  a  right 
vernment  of  of  another  nature  over  all  public,  common,  and  private  pro- 


PRIVATE    PROPERTY.  113 

perty, — that  is,  the  empire,  or  the  right  of  command  in  all     BOOK  r. 
places  of  the  country  belonging  to  the  nation.     The  supreme   CHAP-  xx: 
power  extends  to  every  thing  that  passes  in  the  state,  wher-  Public  Pr°- 
ever  it  is  transacted;  and,  consequently,  the  sovereign  com-perty> 
mands  in  all  public  places,  on  rivers,  on  highways,  in  deserts, 
&c.     Every  thing  that  happens  there  is  subject  to  his  au- 
thority. 

In  virtue  of  the  same  authority,  the  sovereign  may  make  §  246.    The 
laws  to  regulate  the  manner  in  which  common  property  is  to  superior 
be  used, — as  well  the  property  of  the  nation  at  large,  as  that  ™^  ™^e 
of  distinct  bodies  or  corporations.     He  cannot,  indeed,  take,.^^1^ 
away  their  right  from  those  who  have  a  share  in  that  property :  the  use  of 
but  the  care  he  ought  to  take  of  the  public  repose,  and  of  the  things  pos- 
common  advantage  of  the  citizens,  gives  him  doubtless  a  right sessed  m 
to  establish  laws  tending  to  this  end,  and,  consequently,  to 
regulate  the  manner  in  which  things  possessed  in  common  are 
to  be  enjoyed.     This  affair  might  give  room  for  abuses,  and 
excite  disturbances,  which  it  is  important  to  the  state  to  pre- 
vent, and  against  which  the  prince  is  obliged  to  take  just 
measures.     Thus,  the  sovereign  may  establish  wise  laws  with 
respect  to  hunting  and  fishing, — forbid  them  in  the  seasons  of 
propagation, — prohibit  the  use  of  certain  nets,  and  of  every 
destructive  method,  &c.     But,  as  it  is  only  in  the  character 
of  the  common  father,  governor,  and  guardian  of  his  people, 
that  the  sovereign  has  a  right  to  make  those  laws,  he  ought 
never  to  lose  sight  of  the  ends  which  he  is  called  upon  to  ac- 
complish by  enacting  them ;  and  if,  upon  those  subjects,  he 
makes  any  regulations  with  any  other  view  than  that  of  the 
public  welfare,  he  abuses  his  power. 

A  corporation,  as  well  as  every  other  proprietor,  has  a  §247.  Alien- 
right  to  alienate  and  mortgage  its  property :  but  the  present ation  °f  the 
members  ought  never  to  lose  sight  of  the  destination  of  that  Pr°Perty  of 
joint  property,  nor  dispose  of  it  otherwise  than  for  the  ad-  tionrponi 
vantage  of  the  body,  or  in  cases  of  necessity.     If  they  alien- 
ate it  with  any  other  view,  they  abuse  their  power,  and  trans- 
gress against  the  duty  they  own  to  their  own  corporation  and 
their  posterity ;  and  the  prince,  in  quality  of  common  father, 
has  a  right  to  oppose  the  measure.     Besides,  the  interest  of 
the  state  requires  that  the  property  of  corporations  be  not 
squandered  away ; — which  gives   the  prince  intrusted  with 
the  care  of  watching  over  the  public  safety,  a  new  right  to 
prevent  the  alienation  of  such  property.      It  is  then  very 
proper  to  ordain  in  a  state,  that  the  alienation  of  the  pro- 
perty of  corporations  should  be  invalid,  without  the  consent 
of  the  superior  powers.     And  indeed  the  civil  law,  in  this 
respect,  gives  to  corporations  the  rights  of  minors.     But  this 
is  strictly  no  more  than  a  civil  law ;  and  the  opinion  of  those 
who  make  the  law  of  nature  alone  *  sufficient  authority  to 
take  from  a  corporation  the  power  of  alienating  their  pro- 

189 


114  OF   PUBLIC,    COMMON,    AND 

BOOK  i.  perty  without  the  consent  of  the  sovereign,  appears  to  me 
CHAP,  xx.  j.Q  ke  VQ-(j  Q£  foun(jationj  and  contrary  to  the  notion  of  pro- 
perty. A  corporation,  it  is  true,  may  have  received  pro- 
perty, either  from  their  predecessors  or  from  any  other  per- 
sons, with  a  clause  that  disables  them  from  alienating  it :  but 
in  this  case  they  have  only  the  perpetual  use  of  it,  not  the 
entire  and  free  property.  If  any  of  their  property  was 
solely  given  for  the  preservation  of  the  body,  it  is  evident 
that  the  corporation  has  not  a  right  to  alienate  it,  except  in. 
a  case  of  extreme  necessity : — and  whatever  property  they 
may  have  received  from  the  sovereign  is  presumed  to  be  of 
that  nature. 

§  248.  Use  All  the  members  of  a  corporation  have  an  equal  right  to 
°j!0coe™tmon  the  use  of  its  common  property.  But,  respecting  the  manner 
per  y.  ^  enj0y'ng  -^  ^Q  body  of  the  corporation  may  make  such 
regulations  as  they  think  proper,  provided  that  those  regula- 
tions be  not  inconsistent  with  that  equality  which  ought  to 
be  preserved  in  a  communion  of  property.  Thus,  a  corpo- 
ration may  determine  the  use  of  a  common  forest  or  pasture, 
either  allowing  it  to  all  the  members  according  to  their  wants 
or  allotting  to  each  an  equal  share ;  but  they  have  not  a 
right  to  exclude  any  one  of  the  number,  or  to  make  a  distinc- 
tion to  his  disadvantage,  by  assigning  him  a  less  share  than 
that  of  the  others. 

§  249.  How     All  the  members  of  a  body  having  an  equal  right  to  its 
each  mem-    common  property,  each  individual   ought  so   to  manage  in 
ber  is  to  en-  ^ jng  advantage  of  it,  as  not  in  any  wise  to  injure  the  com- 
mon use.     According  to  this  rule,  an  individual  is  not  per- 
mitted to  construct  upon  any  river  that  is  public  property, 
any  work  capable  of  rendering  it  less  convenient  for  the  use 
of  every  one  else,  as,  erecting  mills,  making  a  trench  to  turn 
the  water  upon  his  own  lands,  &c.     If  he  attempts  it,  he  ar- 
rogates to  himself  a  private  right,  derogatory  to  the  common 
right  of  the  public. 

g  250.  night  The  right  of  anticipation  (jus  prseventionis)  ought  to  be 
of  anticipa-  faithfully  observed  in  the  use  of  common  things  which  can- 
not  be  used  by  several  persons  at  the  same  time.  This  name 
is  given  to  the  right  which  the  first  comer  acquires  to  the  use 
of  things  of  this  nature.  For  instance,  if  I  am  actually 
drawing  water  from  a  common  or  public  well,  another  who 
comes  after  me  cannot  drive  me  away  to  draw  out  of  it  him- 
self: and  he  ought  to  wait  till  I  have  done.  For,  I  make 
use  of  my  right  in  drawing  that  water,  and  nobody  can  dis- 
turb me :  a  second,  who  has  an  equal  right,  cannot  assert  it 
to  the  prejudice  of  mine ;  to  stop  me  by  his  arrival  would  be 
arrogating  to  himself  a  better  right  than  he  allows  me,  and 
thereby  violating  the  law  of  equality. 

j  251.   The      The  same  rule  ought  to  be  observed  in  regard  to  those 
same  right   common  things  which  are  consumed  in  using  them.     They 

190 


PRIVATE    PROPERTY.  114 

belong  to  the  person  who  first  takes  possession  of  them  with    BOOK  m. 
the  intention  of  applying  them  to  his  own  use :  and  a  second,  cnA?-  xgi 
who  comes  after,  has  no  right  to  take  them  from  him.     I  re-  in  another 
pair  to  a  common  forest,  and  begin  to  fell  a  tree :  you  come  case- 
in  afterwards,  and  would  wish  to  have  the  same  tree :  you 
cannot  take  it  from  me :  for  this  would  be  arrogating  to  your- 
self a  right  superior  to  mine,  whereas  our  rights  are  equal.  [  115  ] 
The  rule  in  this  case  is  the  same  as  that  which  the  law  of 
nature  prescribes  in  the  use  of  the  productions  of  the  earth 
before  the  introduction  of  property. 

The  expenses  necessary  for  the  preservation  or  reparation  §  252.    Pro 
of  the  things  that  belong  to  the  public,  or  to  a  community,  serration 
ought  to  be  equally  borne  by  all  who  have  a  share  in  them,  a°d  rePairs 

,°    ,  ,  »  i_       j  f  j_i_  °f  common 

whether  the  necessary  sums  be  drawn  from  the  common  possegsions> 
coffer,  or  that  each  individual  contributes  his  quota.  The 
nation,  the  corporation,  and,  in  general,  every  collective  body, 
may  also  establish  extraordinary  taxes,  imposts,  or  annual 
contributions,  to  defray  these  expenses, — provided  there  be 
no  oppressive  exaction  in  the  case,  and  that  the  money  so 
levied  be  faithfully  applied  to  the  use  for  which  it  was  raised. 
To  this  end,  also,  as  we  have  before  observed  (§  103),  toll- 
duties  are  lawfully  established.  Highways,  bridges,  and 
causeways  are  things  of  a  public  nature,  from  which  all  who 
pass  over  them  derive  advantage :  it  is  therefore  just  that  all 
those  pasengers  should  contribute  to  their  support. 

We  shall  see  presently  that  the  sovereign  ought  to  provide  |  253.  Duty 
for  the  preservation  of  the  public  property.     He  is  no  less  and  risht  «f 
obliged,  as  the  conductor  of  the  whole  nation,  to  watch  over  *|\e  ^°^"thia 
the  preservation  of  the  property  of  a  corporation.     It  is  the  respect? 
interest  of  the   state  at  large  that  a  corporation  should  not 
fall  into  indigence  by  the  ill  conduct  of  its  members  for  the 
time  being.     And,  as  every  obligation  generates  the  corre- 
spondent right  which  is  necessary  to  discharge  it,  the  sove- 
reign has  here  a  right  to  oblige  the  corporation  to  conform  to 
their  duty.     If,  therefore,  he  perceives,  for  instance,  that 
they  suffer  their  necessary  buildings  to  fall  to  ruin,  or  that 
they  destroy  their  forests,  he  has  a  right  to  prescribe  what 
they  ought  to  do,  and  to  put  his  orders  in  force. 

We  have  but  a  few  words  to  say  with  respect  to  private  I  254.    Pri- 
property :  every  proprietor  has  a  right  to  make  what  use  he  vate  Pr°- 
pleases  of  his  own  substance,  and  to  dispose  of  it  as  heperfcy* 
pleases,  when  the  rights  of  a  third  person  are  not  involved 
in  the  business.     The  sovereign,  however,  as  the  father  of  » 

his  people,  may  and  ought  to  set  bounds  to  a  prodigal,  and 
to  prevent  his  running  to  ruin,  especially  if  this  prodigal  be 
the  father  of  a  family.  (65)  But  he  must  take  care  not  to 

(65)  In  Great  Britain  no  such  right  person,  or  defrauds  a  person  who  has 
of  interference  exists,  and  a  person  may  insured  against  fire.  Co.  Lit  254;  Sa- 
lay  waste  or  even  burn  his  own  property,  villc's  case,  For.  6,  3  Thomas  Co.  Lit. 
unless  he  thereby  endangers  a  third  243,  n.  (m). — C. 

191 


115  OF    PUBLIC,    COMMON,   AND   PRIVATE   PROPERTY. 

BOOK  r.     extend  this  right  of  inspection  so  far  as  to  lay  a  restraint  on 

JTHAP.  xx.  k's    gubjectg    jn    the    administration  of  their   affairs — which 

would  be  no  less  injurious  to  the  true  welfare  of  the  state 

than  to  the  just  liberty  of  the  citizens.     The  particulars  of 

this  subject  belong  to  public  law  and  politics. 

§  255.  The  It  must  also  be  observed,  that  individuals  are  not  so  per- 
sovereign  fectly  free  in  the  economy  or  government  of  their  affairs  as 
iuo  reguia-  no*  *°  ^e  su^ject  to  the  laws  and  regulations  of  police  made 
tions  of  po-  by  the  sovereign.  For  instahce,  if  vineyards  are  multiplied 
lice.  to  too  great  an  extent  in  a  country  which  is  in  want  of  corn, 

the  sovereign  may  forbid  the  planting  of  the  vine  in  fields 
proper  for  tillage ;  for  here  the  public  welfare  and  the  safety 
of  the  state  are  concerned.  When  a  reason  of  such  import- 
ance requires  it,  the  sovereign  or  the  magistrate  may  oblige 
[  116  ]  an  individual  to  sell  all  the  provisions  in  his  possession  above 
what  are  necessary  for  the  subsistence  of  his  family,  and  may 
fix  the  price  he  shall  receive  for  them.  (66)  The  public  au- 
thority may  and  ought  to  hinder  monopolies,  and  suppress 
all  practices  tending  to  raise  the  price  of  provisions — to  which 
practices  the  Romans  applied  the  expressions  annonam  in- 
cendere,  comprimere,  vexare. 

$  256.  In-  Every  man  may  naturally  choose  the  person  to  whom  he 
heritances.  -would  leave  his  property  after  his  death,  as  long  as  his  right 
is  not  limited  by  some  indispensable  obligation — as,  for  in- 
stance, that  of  providing  for  the  subsistence  of  his  children.  (67) 
The  children  also  have  naturally  a  right  to  inherit  their  fa- 
ther's property  in  equal  proportions.  But  this  is  no  reason 
why  particular  laws  may  not  be  established  in  a  state,  with 
regard  to  testaments  and  inheritances — a  respect  being,  how- 
ever, paid  to  the  essential  laws  of  nature.  Thus,  by  a  rule 
established  in  many  places  with  a  view  to  support  noble  fami- 
lies, the  eldest  son  is,  of  right,  his  father's  principal  heir. 
Lands  perpetually  appropriated  to  the  eldest  male  heir  of  a 
family,  belong  to  him  by  virtue  of  another  right,  which  has 
its  source  in  the  will  of  the  person  who,  being  sole  owner  of 
those  lands,  has  bequeathed  them  in  that  manner. 

(66)  In  Great  Britain  no  such  inter-        (67)  In  England  a  parent  has  an  abso- 

ference  now  takes  place,  though  formerly  lute  right  to  devise  or  bequeath  all  his 

it  was  exercised.      See    1  Bla.   Com.  property  to  a  stranger  in  exclusion  of 

287.— C.  his  children. 


192 


OF   THE   ALIENATION   OF   THE   PUBLIC   PROPERTY.  116 


BOOK   I. 
CHAP.    XXI. 


CHAP.  XXI. 

OF    THE    ALIENATION     OF    THE    PUBLIC    PROPERTY,     OR     THE 
DOMAIN,    AND   THAT   OF  A   PART   OF   THE   STATE. 

THE  nation,  being  the  sole  mistress  of  the  property  in  her  §  257.   The 
possession,  may  dispose  of  it  as  she  thinks  proper,  and  may  nation  may 
lawfully  alienate  or  mortgage  it.     This  right  is  a  necessary  "JjJ*1*  jj" 
consequence  of  the  full  and  absolute  domain :  the  exercise  perty° Pn 
of  it  is  restrained  by  the  law  of  nature  only  with  respect  to 
proprietors  who  have  not  the  use  of  reason  necessary  for  the 
management  of  their  affairs ;  which  is  not  the  case  with  a 
nation.     Those  who  think  otherwise,  cannot  allege  any  solid 
reason  for  their  opinion ;  and  it  would  follow  from  their  prin- 
ciples that  no  safe  contract  can  be  entered  into  with  any  na- 
tion ; — a  conclusion  which  attacks  the  foundation  of  all  public 
treaties. 

But  it  is  very  just  to  say,  that  the  nation  ought  carefully  g  258.   Du- 
to  preserve  her  public  property — to  make  a  proper  use  of  ties  of  a  na- 
it — not  to  dispose  of  it  without  good  reasons,  nor  to  alienate tion  in  this 
or  mortgage  it  but  for  a  manifest  public  advantage,  or  in  case respeck< 
of  a  pressing  necessity.     This  is  an  evident  consequence  of 
the  duties  a  nation  owes  to  herself.     The  public  property 
is  extremely  useful  and  even  necessary  to  the  nation ;  and 
she  cannot  squander  it  improperly  without  injuring  herself, 
and  shamefully  neglecting  the  duty  of  self-preservation.     I 
speak  of  the  public  property,  strictly  so  called,  or  the  domain 
of  the  state.    Alienating  its  revenues  is  cutting  the  sinews  of 
government.     As  to  the  property  common  to  all  the  citizens, 
the  nation  does  an  injury  to  those  who  derive  advantage  from 
it,  if  she  alienates  it  without  necessity,  or  without  cogent  [  117   J 
reasons.     She  has  a  right  to  do  this  as  proprietor  of  these 
possessions ;  but  she  ought  not  to  dispose  of  them  except  in 
a  manner  that  is  consistent  with  the  duties  which  the  body 
owes  to  its  members. 

The  same  duties  lie  on  the  prince,  the  director  of  the  na-  f  259.  »u- 
tion :  he  ought  to  watch  over  the  preservation  and  prudent  tie.s  °*  *he 
management  of  the  public  property — to  stop  and  prevent pnnce< 
all  waste  of  it — and  not  suffer  it  to  be  applied  to  improper 
uses. 

The  prince,  or  the  superior  of  the  society,  whatever  he  is,  g  260.   He 
being  naturally  no  more  than  the  administrator,  and  not  the  cannot 
proprietor  of  the  state,  his  authority,  as  sovereign  or  head  of 
the  nation,  does  not  of  itself  give  him  a  right  to  alienate  or 
mortgage  the  public  property.    The  general  rule  then  is,  that 
the  superior  cannot  dispose  of  the  public  property,  as  to  its 
substance — the  right  to  do  this  being  reserved  to  the  proprietor 
alone,  since  proprietorship  is  defined  to  be  the  right  to  dispose 

25  R  193 


117  ,         OF    THE    ALIENATION    OF 

BOOK  i.    of  a  thing  substantially.     If  the  superior  exceeds  his  powers 
CHAP,  xxi.  wjt]j  respect  to  this  property,  the  alienation  he  makes  of  it 
will  be  invalid,  and  may  at  any  time  be  revoked  by  his  suc- 
cessor, or  by  the  nation.     This  is  the  law  generally  received 
in  France ;  and  it  was  upon  this  principle  that  the  duke  of 
Sully*  advised  Henry  IV.  to  resume  the  possession  of  all  the 
domains  of  the  crown  alienated  by  his  predecessors. 
§261.  The       The  nation,  having  the  frete  disposal  of  all  the  property 
nation  may  belonging  to  her  (§  257),  may  convey  her  right  to  the  sove- 
right  uTit'  rcign>  and  consequently  confer  upon  him  that  of  alienating 
and  mortgaging  the  public  property.     But  this  right  not  being 
necessary  to  the  conductor  of  the  state,  to  enable  him  to  ren- 
der the  people  happy  by  his  government — it  is  not  to  be  pre- 
sumed that  the  nation  have  given  it  to  him;  and,  if  they  have 
not  made  an  express  law  for  that  purpose,  we  are  to  conclude 
that  the  prince  is  not  invested  with  it,  unless  he  has  received 
full,  unlimited,  and  absolute  authority. 

§261.  Rules  The  rules  we  have  just  established  relate  to  alienations  of 
on  this  sub-  pUDlic  property  in  favour  of  individuals.  The  question  assumes 
TecMx*  re~ a  different  aspect  when  it  relates  to  alienations  made  by  one 
treaties  be-  nation  to  another  :f  it  requires  other  principles  to  decide  it  in 
tween  na-  the  different  cases  that  may  present  themselves.  Let  us  en- 
tion  and  deavour  to  give  a  general  theory  of  them. 

1.  It  is  necessary  that  nations  should  be  able  to  treat  and 
contract  validly  with  each  other,  since  they  would  otherwise 
find  it  impossible  to  bring  their  affairs  to  an  issue,  or  to  obtain 
the  blessings  of  peace  with  any  degree  of  certainty.     Whence 
it  follows,  that,  when  a  nation  has  ceded  any  part  of  its  pro- 
perty to  another,  the  cession  ought  to  be  deemed  valid  and 

f  118  "j  irrevocable,  as  in  fact  it  is,  in  virtue  of  the  notion  of  pro- 
perty. This  principle  cannot  be  shaken  by  any  fundamental 
law  by  which  a  nation  might  pretend  to  deprive  themselves  of 
the  power  of  alienating  what  belongs  to  them  :  for,  this  would 
be  depriving  themselves  of  all  power  to  form  contracts  with 
other  nations,  or  attempting  to  deceive  them.  A  nation  with 
such  a  law  ought  never  to  treat  concerning  its  property :  if  it 
is  obliged  to  it  by  necessity,  or  determined  to  do  it  for  its  own 
advantage,  the  moment  it  broaches  a  treaty  on  the  subject,  it 
renounces  its  fundamental  law.  It  is  seldom  disputed  that  an 
entire  nation  may  alienate  what  belongs  to  itself:  but  it  is 
asked,  whether  its  conductor,  its  sovereign,  has  this  power  ? 
The  question  may  be  determined  by  the  fundamental  laws. 
But,  if  the  laws  say  nothing  on  this  subject,  then  we  have 
recourse  to  our  second  principle,  viz. 

2.  If  the  nation  has  conferred  the  full  sovereignty  on  its 
conductor — if  it  has  intrusted  to  him  the  care,  and,  without 

*  See  his  Memoirs. 

t  Quod  domania  regnorum  inalien-  contra   alias    gentes   divino   privilegio 

abilia  et  semper  revocabilia  dicuntur,  opus  foret.     Leibnitz,  Prafat.  ad  Cod. 

id  respectu  privatorum  intelligitur ;  nam  Jur.  Gent.  Dip  lumat. 
194 


THE   PUBLIC    PROPERTY.  118 

reserve,  given  him  the  right,  of  treating  and  contracting  with    BOOK  i. 

other  states,  it  is  considered  as  having  invested  him  with  all  CHAP,  xxi. 

the  powers  necessary  to  make  a  valid  contract.     The  prince 

is  then  the  organ  of  the  nation :  what  he  does  is  considered 

as  the  act  of  the  nation  itself;  and,  though  he  is  not  the  owner 

of  the  public  property,  his  alienations  of  it  are  valid,  as  being 

duly  authorized. 

The  question  becomes  more  distinct,  when  it  relates,  not  to  §263.  Alien- 
the  alienation  of  some  parts  of  the  public  property,  but  to  ation  of  a 
the  dismembering  of  the  nation  or  state  itself — the  cession^ ofthe 
of  a  town  or  a  province  that  constitutes  a  part  of  it.  This 
question,  however,  admits  of  a  sound  decision  on  the  same 
principles.  A  nation  ought  to  preserve  itself  (§  26) — it  ought 
to  preserve  all  its  members — it  cannot  abandon  them;  and  it 
is  under  an  engagement  to  support  them  in  their  rank  as  mem- 
bers of  the  nation  (§  17).  It  has  not,  then,  a  right  to  traffic 
with  their  rank  and  liberty,  on  account  of  any  advantages  it 
may  expect  to  derive  from  such  a  negotiation.  They  have 
joined  the  society  for  the  purpose  of  being  members  of  it — 
they  submit  to  the  authority  of  the  state  for  the  purpose  of 
promoting  in  concert  their  common  welfare  and  safety,  and 
not  of  being  at  its  disposal,  like  a  farm  or  a  herd  of  cattle. 
But  the  nation  may  lawfully  abandon  them  in  a  case  of  ex- 
treme necessity ;  and  she  has  a  right  to  cut  them  off"  from  the 
body,  if  the  public  safety  requires  it.  When,  therefore,  in 
such  a  case,  the  state  gives  up  a  town  or  a  province  to  a 
neighbour  or  to  a  powerful  enemy,  the  cession  ought  to  remain 
valid  as  to  the  state,  since  she  had  a  right  to  make  it:  uor 
can  she  any  longer  lay  claim  to  the  town  or  province  thus 
alienated,  since  she  has  relinquished  every  right  she  could 
have  over  it. 

But  the  province  or  town  thus  abandoned  and  dismembered  §  264- 
from  the  state,  is  not  obliged  to  receive  the  new  master  whom  ^^^gm 
the  state  attempts  to  set  over  it.     Being  separated  from  the  bered  party" 
society  of  which  it  was  a  member,  it  resumes  all  its  original 
rights ;  and  if  it  be  capable  of  defending  its  liberty  against 
the  prince  who  would  subject  it  to  his  authority,  it  may  law- 
fully resist  him.     Francis  I.  having  engaged,  by  the  treaty  [  119  ] 
of  Madrid,  to  cede  the  duchy  of  Burgundy  to  the  emperor 
Charles  V.,  the  states  of  that  province  declared,  "  that,  hav- 
ing never  been  subject  but  to  the  crown  of  France,  they  would 
die  subject  to  it ;  and  that,  if  the  king  abandoned  them,  they 
would  take  up  arms,  and  endeavour  to  set  themselves  at  lib- 
erty, rather  than  pass  into  a  new  state  of  subjection."*     It 
is  true,  subjects  are  seldom  able  to  make  resistance  on  such 
occasions ;  and,  in  general,  their  wisest  plan  will  be  to  submit 
to  their  new  master,  and  endeavour  to  obtain  the  best  terms 
they  can. 

*  Mezeray's  History  of  France,  vol.  ii.  p.  458. 


119 


OF   THE   ALIENATION   OF   THE   PUBLIC   PKOPERTY. 


§265. 
Whether 
the  prince 
has  power 
to  dismcm- 
ber  the 
state. 


Has  the  prince,  or  the  superior  of  whatever  kind,  a  power 
to  dismember  the  state  ?  We  answer  as  we  have  done  with 
respect  to  the  domain : — if  the  fundamental  laws  forbid  all 
dismemberment  by  the  sovereign,  he  cannot  do  it  without  the 
concurrence  of  the  nation  or  its  representatives.  But,  if  the 
laws  are  silent,  and  if  the  prince  has  received  a  full  and  ab- 
solute authority,  he  is  then  the  depositary  of  the  rights  of  the 
nation,  and  the  organ  by  which  it  declares  its  will.  The  na- 
tion ought  never  to  abandon  its  members  but  in  a  case  of 
necessity,  or  with  a  view  to  the  public  safety,  and  to  preserve 
itself  from  total  ruin ;  and  the  prince  ought  not  to  give  them 
up  except  for  the  same  reasons.  But,  since  he  has  received 
an  absolute  authority,  it  belongs  to  him  to  judge  of  the  neces- 
sity of  the  case,  and  of  what  the  safety  of  the  state  requires. 

On  occasion  of  the  above-mentioned  treaty  of  Madrid,  the 
principal  persons  in  France,  assembled  at  Cognag  after  the 
king's  return,  unanimously  resolved,  "  that  his  authority  did 
not  extend  so  far  as  to  dismember  the  crown."*  The  treaty 
was  declared  void,  as  being  contrary  to  the  fundamental  law 
of  the  kingdom :  and,  indeed,  it  had  been  concluded  without 
sufficient  powers :  for,  as  the  laws  in  express  terms  refused  to 
the  king  the  power  of  dismembering  the  kingdom,  the  con- 
currence of  the  nation  was  necessary  for  that  purpose ;  and  it 
might  give  its  consent  by  the  medium  of  the  states-general. 
Charles  V.  ought  not  to  have  released  his  prisoner  before 
those  very  states  had  approved  the  treaty ;  or  rather,-  making 
a  more  generous  use  of  his  victory,  he  should  have  imposed 
less  rigorous  conditions,  such  as  Francis  I.  would  have  been 
able  to  comply  with,  and  such  as  he  could  not,  without  dis- 
honour, have  refused  to  perform.  But  now  that  there  are  no 
longer  any  meetings  of  the  states-general  in  France,  the  king 
remains  the  sole  organ  of  the  state,  with  respect  to  other 
powers  :  these  latter  have  a  right  to  take  his  will  for  that  of 
all  France ;  and  the  cessions  the  king  might  make  them 
would  remain  valid,  in  virtue  of  the  tacit  consent  by  which 
the  nation  has  vested  the  king  with  unlimited  powers  to  treat 
with  them.  Were  it  otherwise,  no  solid  treaty  could  be  en- 
tered into  with  the  crown  of  France.  For  greater  security, 
[  120  ]  however,  other  powers  have  often  required  that  their  treaties 
should  be  registered  in  the  parliament  of  Paris ;  but  at  present 
even  this  formality  seems  to  be  laid  aside. 

*  Mezeray's  History  of  France,  vol.  ii.  p.  458. 


196 


OF  RIVERS,   STREAMS,   AND   LAKES.  120 


BOOK  I. 

CHAP.  xxn. 


CHAP.  XXII. 

OF  RIVERS,   STREAMS,   AND   LAKES. 

WHEN  a  nation  takes  possession  of  a  country,  with  a  view  §266.  A  ri- 
to  settle  there,  it  takes  possession  of  every  thing  included  in  ver  that  se- 
it,  as  lands,  lakes,  rivers,  &c.  But  it  may  happen  that  the 
country  is  bounded  and  separated  from  another  by  a  river ;  in 
which  case,  it  is  asked,  to  whom  this  river  belongs.  It  is 
manifest,  from  the  principles  established  in  Chap.  XVIII.,  that 
it  ought  to  belong  to  the  nation  who  first  took  possession  of 
it.  This  principle  cannot  be  denied ;  but  the  difficulty  is,  to 
make  the  application.  It  is  not  easy  to  determine  which  of 
the  two  neighbouring  nations  was  the  first  to  take  possession 
of  a  river  that  separates  them.  For  the  decision  of  such 
questions,  the  rules  which  may  be  deduced  from  the  principles 
of  the  law  of  nations  are  as  follow : — 

1.  When  a  nation  takes  possession  of  a  country  bounded 
by  a  river,  she  is  considered  as  appropriating  to  herself  the 
river  also :  for,  the  utility  of  a  river  is  too  great  to  admit  a 
supposition  that  the  nation  did  not  intend  to  reserve  it  to  her- 
self.    Consequently,  the  nation  that  first  established  her  do- 
minion on  one  of  the  banks  of  the  river  is  considered  as  being 
the  first  possessor  of  all  that  part  of  the  river  which  bounds 
her  territory.     When  there  is  question  of  a  very  broad  river, 
this  presumption  admits  not  of  a  doubt,  so  far,  at  least,  as 
relates  to  a  part  of  the  river's  breadth ;  and  the  strength  of 
the  presumption  increases  or  diminishes  in  an  inverse  ratio 
with  the  breadth  of  a  river ;  for,  the  narrower  the  river  is, 
the  more  does  the  safety  and  convenience  of  its  use  require 
that  it  should  be  subject  entirely  to  the  empire  and  property 
of  that  nation.  (68) 

2.  If  that  nation  has  made  any  use  of  the  river,  as,  for 
navigating  or  fishing,  it  is  presumed  with  the  greatest  cer- 
tainty that  she  has  resolved  to  appropriate  the  river  to  her 
own  use. 

3.  If,  of  two  nations  inhabiting  the  opposite  banks  of  the 
river,  neither  party  can  prove  that  they  themselves,  or  those 
whose  rights  they  inherit,  were  the  first  settlers  in  those 
tracts,  it  is  to  be  supposed  that  both  nations  came  there  at 
the  same  time,  since  neither  of  them  can  give  any  reason  for 
claiming  the  preference ;  and  in  this  case  the  dominion  of 
each  will  extend  to  the  middle  of  the  river.  (*) 

(68)  As  regards  private  rights,  there     Doug.  411.     {Palmer  v.  Hicks,  6  Johns, 
is  no  legal  presumption  that  the    soil    Rep.  133.} 

of  a  navigable  river  belongs  to  the  own-        (1)  { 5  Wheat  Rep.  374,  379  j  3  Mass, 
ers  of  the  adjoining  lands,  ex  utraque    Rep.  147.} 
parte,  or  otherwise.     Bex  v.  Smith,  2 

B2  197 


120  OP  RIVERS,  STREAMS,  AND  LAKES. 

BOOK  i.         4.  A  long  and  undisputed  possession  establishes  the  right 
CHAP.  xxn.  Q£  nations,  (69)  otherwise  there  could  be  no  peace,  no  stabi- 
lity between  them  ;  and  notorious  facts  must  be  admitted  to 
prove  the  possession.     Thus,  when  from  time  immemorial  a 
nation  has,  without  contradiction,  exercised  the  sovereignty 
[  121  ]  upon  a  river  which  forms  her  boundary,  nobody  can  dis- 
pute with  that  nation  the  supreme  dominion  over  the  river  in 
question. 

5.  Finally,  if  treaties  determine  any  thing  on  this  question, 
they  must  be  observed.  To  decide  it  by  accurate  and  express 
stipulations,  is  the  safest  mode ;  and  such  is,  in  fact,  the  me- 
thod taken  by  most  powers  at  present. 

§  267.  Of  If  a  river  leaves  its  bed,  whether  it  be  dried  up  or  takes 
the  bed  of  a  its  course  elsewhere,  the  bed  belongs  to  the  owner  of  the 
flv!r.  ^hlch  river ;  for,  the  bed  is  a  part  of  the  river ;  and  he  who  had 

is  dried  up.  '.'-  .  .         ••/•      i  ,,  -, 

or  takes  an-  appropriated  to  himself  the  whole,  had  necessarily  appro- 
other  course,  priated  to  himself  all  its  parts. 

The      If  a  territory  which  terminates  on  a  river  has  no  other 


right  of  ai-  boundary  than  that  river,  it  is  one  of  those  territories  that 
hmon.(70)  jlaye  natura]  or  indeterminate  bounds  (territoria  arcifinia), 
and  it  enjoys  the  right  of  alluvion  ;  that  is  to  say,  every  gra- 
dual increase  of  soil,  every  addition  which  the  current  of  the 
river  may  make  to  its  bank  on  that  side,  is  an  addition  to 
that  territory,  stands  in  the  same  predicament  with  it,  and 
belongs  to  the  same  owner.  For,  if  I  take  possession  of  a 
piece  of  land,  declaring  that  I  will  have  for  its  boundary  the 
river  which  washes  its  side, — or  if  it  is  given  to  me  upon 
that  footing, — I  thus  acquire,  beforehand,  the  right  of  allu- 
vion ;  and,  consequently,  I  alone  may  appropriate  to  myself 
whatever  additions  the  current  of  the  river  may  insensibly 
make  to  my  land  : — I  say  "  insensibly,"  because  in  the  very 
uncommon  case  called  avulsion,  when  the  violence  of  the 
stream  separates  a  considerable  part  from  one  piece  of  land 
and  joins  it  to  another,  but  in  such  manner  that  it  can  still 
be  identified,  the  property  of  the  soil  so  removed  naturally 
continues  vested  in  its  former  owner.  The  civil  laws  have  thus 
provided  against  and  decided  this  case,  when  it  happens  be- 
tween individual  and  individual ;  they  ought  to  unite  equity  with 
the  welfare  of  the  state,  and  the  care  of  preventing  litigations. 
In  case  of  doubt,  every  territory  terminating  on  a  river  is 
presumed  to  have  no  other  boundary  than  the  river  itself; 
because  nothing  is  more  natural  than  to  take  a  river  for  a 

(69)  Aa  to  what  ia  a  sufficiently  long  178 ;  4  Dowl.  A   Ry.  790 ;   3   Barn.  & 
and  undisturbed  possession,  by  the  law  Cres.  91,  S.  C.;   5  Bing.  163,  169;   1 
of   France,   Jersey,   and    England,   in  Thomas  Co.  Lit.  47,  in  note ;  Scultes  on 
general,  see  Eenett  v.  Pipon,  Knapp's  Aquatic  Rights ;  Chitty's  General  Prac- 
Rep.  67.  tice,  199,  200.     {2  Johns.  Rep.  322;  3 

(70)  As  to  the  rights  of  alluvion,  or  Mass.  Rep.  325;  2  Hall's  L.  Journ.  307; 
gudden  derelict  in  general,  see  The  King  5  Hall's  L.  Journ.  1, 113.} 

v.  Yarborough,  1  Dow  Rep.  New  Series, 
198 


OF  RIVERS,  STREAMS,  AND  LAKES.  121 

boundary,  when  a  settlement  is  made ;  and  wherever  there  is     BOOK  i. 
a  doubt,  that  is  always  to  be  presumed  which  is  most  natural  CHAP-  xxn- 
and  most  probable. 

As  soon  as  it  is  determined  that  a  river  constitutes  the  g  269.  Whe- 
boundary  line  between  two  territories,  whether  it  remains  com-  ther  aiiu- 
mon  to  the  inhabitants  on  each  side  of  its  banks,  or  whether  vion  Pr°- 
each  shares  half  of  it,  or,  finally,  whether  it  belongs  entirely  cj^t"n 
to  one  of  them,  their  rights  with  respect  to  the  river  are  in  tho  rfght  to 
no  wise  changed  by  the  alluvion.     If,  therefore,  it  happens,  a  river, 
that,  by  a  natural  effect  of  the  current,  one  of  the  two  terri- 
tories receives  an  increase,   while  the   river  gradually  en- 
croaches on  the  opposite  bank,  the  river  still  remains  the  na- 
tural boundary  of  the  two  territories,  and  notwithstanding 
the  progressive  changes  in  its  course,  each  retains  over  it  the 
same  rights  which  it  possessed  before ;  so  that,  if,  for  instance, 
it  be  divided  in  the  middle  between  the  owners  of  the  oppo- 
site banks,  that  middle,  though  it  changes  its  place,  will  con- 
tinue to  be  the  line  of  separation  between  the  two  neighbours. 
The  one  loses,  it  is  true,  while  the  other  gains ;  but  nature 
alone  produces  this  change :  she  destroys  the  land  of  the  one,  [  122  ] 
while  she  forms  new  land  for  the  other.     The  case  cannot  be 
otherwise  determined,  since  they  have  taken  the  river  alone 
for  their  limits. 

But  if,  instead  of  a  gradual  and  progressive  change  of  its  g  270. 
bed,  the  river,  by  an  accident  merely  natural,  turns  entirely  What  is  the 
out  of  its  course,  and  runs  into  one  of  the  two  neighbouring  J^er7^n 
states,  the  bed  which  it  has  abandoned  becomes,  thencefor-  *h^  "™rita 
ward,  their  boundary,  and  remains  the  property  of  the  for- bed. 
mer  owner  of  the  river  (§  267) ;  the  river  itself  is,  as  it  were, 
annihilated  in  all  that  part,  while  it  is  reproduced  in  its  new 
bed,  and  there  belongs  only  to  the  state  in  which  it  flows. 

This  case  is  very  different  from  that  of  a  river  which 
changes  its  course  without  going  out  of  the  same  state.  The 
latter,  in  its  new  course,  continues  to  belong  to  its  former 
owner,  whether  that  owner  be  the  state,  or  any  individual  to 
whom  the  state  has  given  it ;  because  rivers  belong  to  the 
public  in  whatever  part  of  the  country  they  flow.  Of  the 
bed  which  it  has  abandoned,  a  moiety  accrues  to  the  contigu- 
ous lands  on  each  side,  if  they  are  lands  that  have  natural 
boundaries,  with  the  right  of  alluvion.  That  bed  (notwith- 
standing what  we  have  said  in  §  267)  is  no  longer  the  pro- 
perty of  the  public,  because  of  the  right  of  alluvion  vested 
in  the  owners  of  its  banks,  and  because  the  public  held  pos- 
session of  the  bed  only  on  account  of  its  containing  a  river. 
But,  if  the  adjacent  lands  have  not  natural  boundaries,  the 
public  still  retains  the  property  of  the  bed.  The  new  soil 
over  which  the  river  takes  its  course  is  lost  to  the  proprietor, 
because  all  the  rivers  in  the  country  belong  to  the  public. 

It  is  not  allowable  to  raise  any  works  on  the  bank  of  &%2n. 
river,  which  have  a  tendency  to  turn  its  course,  and  to  cast  Works 

199 


122  OF    RIVERS,    STREAMS,    AND    LAKES. 

BOOK  i.  it  upon  the  opposite  bank :  this  would  be  promoting  our  own 
CHAP,  xxn.  a(jvantage  a^  our  neighbour's  expense.  Each  can  only  secure 
tending  to  himself,  and  hinder  the  current  from  undermining  and  carry- 
current6  1  ™S  &Way  ^  ^^  ^ 

TviT^or  in      ^n  genera^  no  person  ought  to  build  on  a  river,  any  more 
general,  '     than  elsewhere,  any  work  that  is  prejudicial  to  his  neigh- 
prejudicial    hour's  rights.     If  a  river  belongs  to  one  nation,  and  another 
to  the  rights  has   an  incontestible  right  to  navigate  it,  the  former  cannot 
(73)*  efS      erect  upon  it  a  dam  or  a  mill  which  might  render  it  unfit  for 
navigation.     The  right  which  the  owners  of  the  river  possess 
in  this  case  is  only  that  of  a  limited  property ;  and,  in  the 
exercise  of  it,  they  are  bound  to  respect  the  rights  of  others, 
g  273.  Rules      But,  when  two  different  rights  to  the  same  thing  happen  to 
in  relation    clash  with  each  other,   it  is  not  always  easy  to  determine 
to  interfer-  wnicn  ought  to  yield  to  the  other  :  the  point  cannot  be  satis- 
mg  ng  s.    facj-orj}y  decided,  without  attentively  considering  the  nature 
of  the  rights,  and  their  origin.     For  example,  a  river  belongs 
to  me,  but  you  have  a  right  to  fish  in  it :  and  the  question  is, 
whether  I  may  erect  mills  on  my  river,  whereby  the  fishery 
will  become  more  difficult  and  less  advantageous  ?     The  na- 
[  123  ]  ture  of  our  rights  seems  to  determine  the   question  in  the 
affirmative.     I,  as  proprietor,  have  an  essential  right  over  the 
river  itself: — you  have  only  a  right  to  make  use  of  it — a 
right  which  is  merely  accessory,  and  dependent  on  mine  ;  you 
have  but  a  general  right  to  fish  as  you  can  in  my  river,  such 
as  you  happen  to  find  it,  and  in  whatever  state  I  may  think 
fit  to  possess  it.     I  do  not  deprive  you  of  your  right  by  erect- 
ing my  mills :  it  still  exists  in  the  general  view  of  it ;  and, 
if  it  becomes  less  useful  to  you,  it  is  by  accident,  and  because 
it  is  dependent  on  the  exercise  of  mine.  (74) 

The  case  is  different  with  respect  to  the  right  of  naviga- 
tion, of  which  we  have  spoken.  This  right  necessarily  sup- 
poses that  the  river  shall  remain  free  and  navigable,  and 
therefore  excludes  every  work  that  will  entirely  interrupt  its 
navigation. 

The  antiquity  and  origin  of  the  rights  serve,  no  less  than 
their  nature,  to  determine  the  question.  The  more  ancient 

(71)  This   principle    of    the   law  of  in  the  current.     Rex  v.  Paghnm,  8  Barn, 
nations  has  been  ably  discussed  as  part  <fc  Cress.  355 ;  Rex  v.  Trafford,  1  Barn, 
of  the  municipal  law  of  Scotland  and  &  Adolph.  874;  2  Man.  &  Ryl.  468;  1 
England    in     Menzies   v.    Jii-cadalbane,  Moore   &   Scott,  401 ;  8  Bjng.  204,  (in 
3    Wils.    &   Shaw,  235;    and   see    The  error.) 

King  v.  Lord  Yarborough,  1  Dow.  Rep.,  (73)  See  note  72. 

New  Series,  179;  and  Wright  v.  Hoie-  (74)  But  this   doctrine  seems   ques- 

ard,  1   Sim.  A  Stu.  190 ;  Rex  v.  Traf-  tionable.    See  Wright  v.  Howard,  1  Sim. 

ford,  1  Barn.  &  Adolph.  874,  and  Chit-  A  Stu.  190 ;  and  Mason  v.  Hill,  3  Barn, 

ty's   General   Practice,    610.     {4   Dall.  &  Adolph.  304;  Chitty's  General  Prac. 

Rep.  211 ;  13  Mass.  420,  507;  3  Har.  &  191,  192.     Even  a  right  of  irrigating  at 

McIIen.  441;  2  Conn.  Rep.  584;  Coxe's  reasonable  times  may  qualify  the  abso- 

Eep.  460. }  lute  and  general  right  to  the  use  of  the 

(72)  That  is   permitted  as  well  as  a  water  for  working  a  mill, 
bank  or  groove  to  prevent  an  alteration 

200 


OF  RIVERS,  STREAMS,  AND  LAKES.  123 

right,  if  it  be  absolute,  is  to  be  exerted  in  its  full  extent,  and    BOOK  x- 
the  other  only  so  far  as  it  may  be  extended  without  prejudice  CHAP-  xxn> 
to  the  former ;  for,  it  could  only  be  established  on  this  foot- 
ing, unless  the  possessor  of  the  first  right  has  expressly  con- 
sented to  its  being  limited. 

In  the  same  manner,  rights  ceded  by  the  proprietor  of  any 
thing  are  considered  as  ceded  without  prejudice  to  the  other 
rights  that  belong  to  him,  and  only  so  far  as  they  are  consist- 
ent with  these  latter,  unless  an  express  declaration,  or  the 
very  nature  of  the  right,  determine  it  otherwise.  If  I  have 
ceded  to  another  the  right  of  fishing  in  my  river,  it  is  mani- 
fest that  I  have  ceded  it  without  prejudice  to  my  other  rights, 
and  that  I  remain  free  to  build  on  that  river  such  works  as  I 
think  proper,  even  though  they  should  injure  the  fishery,  pro- 
vided they  do  not  altogether  destroy  it.  (75)  A  work  of  this 
latter  kind,  such  as  a  dam  that  would  hinder  the  fish  from 
ascending  it,  could  not  be  built  but  in  case  of  necessity,  and 
on  making,  according  to  circumstances,  an  adequate  compen- 
sation to  the  person  who  has  a  right  to  fish  there. 

What  we  have  said  of  rivers  and  streams,  may  be  easily  §  274. 
applied  to  lakes.  Every  lake,  entirely  included  in  a  country,  Lakes- 
belongs  to  the  nation  that  is  the  proprietor  of  that  country ; 
for  in  taking  possession  of  a  territory,  a  nation  is  considered  as 
having  appropriated  to  itself  every  thing  included  in  it ;  and, 
as  it  seldom  happens  that  the  property  of  a  lake  of  any  con- 
siderable extent  falls  to  the  share  of  individuals,  it  remains 
common  to  the  nation.  If  this  lake  is  situated  between  two 
states,  it  is  presumed  to  be  divided  between  them  at  the  mid- 
dle, while  there  is  no  title,  no  constant  and  manifest  custom, 
to  determine  otherwise. 

What  has  been  said  of  the  right  of  alluvion,  in  speaking  of  g  275.   In- 
rivers,  is  also  to  be  understood  as  applying  to  lakes.     When crease  of  a 
a  lake  which  bounds  a  state  belongs  entirely  to  it,  every  in- lake' 
crease  in  the  extent  of  that  lake  falls  under  the  same  predi- 
cament as  the  lake  itself;  but  it  is  necessary  that  the  increase 
should  be  insensible,  as  that  of  land  in  alluvion,  and  moreover 
that  it  be  real,  constant,  and  complete.  To  explain  myself  more 
fully, — 1. 1  speak  of  insensible  increase:  this  is  the  reverse  of 
alluvion ;  the  question  here  relates  to  the  increase  of  a  lake,  as,  [  124  ] 
in  the  other  case,  to  an  increase  of  soil.     If  this  increase  be 
not  insensible, — if  the  lake,  overflowing  its  banks,  inundates  a 
large  tract  of  land,  this  new  portion  of  the  lake,  this  tract  thus 
covered  with  water,  still  belongs  to  its  former  owner.     Upon 
what  principles  can  we  found  the  acquisition  of  it  in  behalf  of  the 
owner  of  the  lake?  The  space  is  very  easily  identified,  though 
it  has  changed  its  nature :  and  it  is  too  considerable  to  admit  a 
presumption  that  the  owner  had  no  intention  to  preserve  it  to 
himself,  notwithstanding  the  changes  that  might  happen  to  it. 

(75)  See  note  74,  ante,  p.  122. 


124  OF   RIVERS,    STREAMS,   AND   LAKES. 

BOOK  i.  But,  2.  If  the  lake  insensibly  undermines  a  part  of  the 
CHAP,  xxii.  0ppOSite  territory,  destroys  it,  and  renders  it  impossible  to  be 
known,  by  fixing  itself  there,  and  adding  it  to  its  bed,  that 
part  of  the  territory  is  lost  to  its  former  owner ;  it  no  longer 
exists ;  and  the  whole  of  the  lake  thus  increased  still  belongs 
to  the  same  state  as  before. 

3.  If  some  of  the  lands  bordering  on  the  lake  are  only  over- 
flowed at  high  water,  this  transient  accident  cannot  produce 
any  change  in  their  dependence.     The  reason  why  the  soil 
which  the  lake  invades  by  little  and  little  belongs  to  the  owner 
of  the  lake  and  is  lost  to  its  former  proprietor,  is,  because 
the  proprietor  has  no  other  boundary  than  the  lake,  nor  any 
other  marks  than  its  banks,  to  ascertain  how  far  his  posses- 
sions extend.     If  the  water  advances  insensibly,  he  loses  ;  if 
it  retires  in  like  manner,  he  gains :  such  must  have  been  the 
intention  of  the  nations  who  have  respectively  appropriated 
to  themselves  the  lake  and  the  adjacent  lands  : — it  can  scarce- 
ly be  supposed  that  they  had  any  other  intention.     But  a 
territory  overflowed  for  a  time  is  not  confounded  with  the 
rest  of  the  lake :  it  can  still  be  recognised ;  and  the  owner 
may  still  retain  his  right  of  property  in  it.     Were  it  other- 
wise, a  town  overflowed  by  a  lake  would  become  subject  to  a 
different  government  during  the  inundation,  and  return  to  its 
former  sovereign  as  soon  as  the  waters  were  dried  up. 

4.  For  the  same  reasons,  if  the  waters  of  the  lake,  pene- 
trating by  an  opening  into  the  neighbouring  country,  there 
form  a  bay,  or  new  lake,  joined  to  the  first  by  a  canal,  this 
new  body  of  water  and  the  canal  belong  to  the  owner  of  the 
country  in  which  they  are  formed.     For  the  boundaries  are 
easily  ascertained :  and  we  are  not  to  presume  an  intention 
of ,  relinquishing  so  considerable  a  tract  of  land  in  case  of  its 
happening  to  be  invaded  by  the  waters  of  an  adjoining  lake. 

It  must  be  observed  that  we  here  treat  the  question  as 
arising  between  two  states :  it  is  to  be  decided  by  other  princi- 
ples when  it  relates  to  proprietors  who  are  members  of  the 
same  state.  In  the  latter  case,  it  is  not  merely  the  bounds 
of  the  soil,  but  also  its  nature  and  use, -that  determine  the 
possession  of  it.  An  individual  who  possesses  a  field  on  the 
borders  of  a  lake,  cannot  enjoy  it  as  a  field  when  it  is  over- 
flowed ;  and  a  person  who  has,  for  instance,  the  right  of  fish- 
ing in  the  lake,  may  exert  his  right  in  this  new  extent :  if  the 
[  125  ]  waters  retire,  the  field  is  restored  to  the  use  of  its  former 
owner.  If  the  lake  penetrates  by  an  opening  into  the  low 
lands  in  its  neighbourhood,  and  there  forms  a  permanent  in- 
undation, this  new  lake  belongs  to  the  public,  because  all 
lakes  belong  to  the  public. 

§  276.  Land  The  same  principles  show,  that  if  the  lake  insensibly  forms 
formed  on  an  accession  of  land  on  its  banks,  either  by  retiring  or  in  any 
the  banks  Other  manner,  this  increase  of  land  belongs  to  the  country 
0  °'  which  it  joins,  when  that  country  has  no  other  boundary  than 

202      ' 


OP   THE   SEA. 


125 


It  is  the  same  thing  as  alluvion  on  the  banks  of 


BOOK  i. 

CHAP.   XXII. 


the  lake. 

,,  . 

the  river. 

But,  if  the  lake  happened  to  be  suddenly  dried  up,  either  §  277.   Bed 
totally  or  in  a  great  part  of  it,  the  bed  would  remain  in  the  of.a  lake 
possession  of  the  sovereign  of  the  lake  ;  the  nature  of  the  soil, 
so  easily  known,  sufficiently  marking  out  the  limits. 

The  empire  or  jurisdiction  over  lakes  and  rivers  is  subject  ?  278.   Ju- 
to  the  same  rules  as  the  property  of  them,  in  all  the  cases  ™di°1ti°n 
which  we  have  examined.     Each  state  naturally  possesses  it     r*™ 
over  the  whole  or  the  part  of  which  it  possesses  the  domain. 
We  have  seen  (§  245)  that  the  nation,  or  its  sovereign,  com- 
mands in  all  places  in  its  possession. 


CHAP.  XXIII. 

OF  THE  SEA.  (76) 


CHAP.  xxin. 


IN  order  to  complete  the  exposition  of  the  principles  of  the  §  279.   Ttj 
law  of  nations  with  respect  to  the  things  a  nation  may  pos-  sea>  and  its 
sess,  it  remains  to  treat  of  the  open  sea.    The  use  of  the  open  use< 
sea  consists  in  navigation,  and  in  fishing ;  along  its  coasts  it 
is  moreover  of  use  for  the  procuring  of  several  things  found 
near  the  shore,  such  as  shell-fish,  amber,  pearls,  &c.,  for  the 


(76)  As  to  the  dominion  of  the  main 
seas,  and  right  to  limit  the  passage  there- 
on, and  the  claim  of  the  English  in  the 
British  seas  and  elsewhere,  in  general, 
see  the  authorities  collected  in  1  Chitty's 
Commercial  Law,  88  to  108.  With  re- 
spect to  the  view  taken  by  the  English 
law  of  rights  in  and  connected  with  the 
sea  and  sea-shore,  the  doctrine  is,  that 
the  sea  is  the  property  of  the  king ;  and 
that  so  is  the  land  beneath,  except  such 
part  of  that  land  as  is  capable  of  being 
usefully  occupied  without  prejudice  to 
navigation,  and  of  which  a  subject  has 
either  had  a  grant  from  the  king,  or 
has  so  exclusively  used  it  for  so  long  a 
time  as  to  confer  on  him  a  title  by  pro- 
scription. In  the  latter  case,  a  pre- 
sumption is  raised  that  the  king  has 
either  granted  him  an  exclusive  right 
to  it,  or  has  permitted  him  to  have  pos- 
session of  it,  and  to  employ  his  money 
and  labour  upon  it,  so  as  to  confer  upon 
him  a  title  by  occupation,  the  founda- 
tion of  most  of  the  rights  to  property  in 
land.  This  is  the  law  of  England,  and 
also  of  Jersey,  and  some  other  islands 
belonging  to  Great  Britain.  Senest  v. 


Pipon,  Knapp's  Rep.  67;  Blundett  v. 
Cotterall,  5  Bar.  &  Aid.  268,-  and  The 
King  v.  Lord  Yarborotigh,  3  Bar.  A  Cres. 
91,  and  1  Dow's  Appeal  Cases,  New 
Series,  178.  In  the  first  mentioned  case, 
it  was  decided  that  the  lord  of  a  manor 
cannot  establish  a  claim  to  the  exclusive 
right  of  cutting  sea-weed  on  rocks  below 
low-water  mark,  except  by  a  grant  from 
the  king,  or  by  such  long  and  undis- 
turbed enjoyment  of  it  (viz.  at  least  for 
twenty  years  continuously)  as  to  give 
him  a  title  by  prescription ;  and  that 
the  possession  necessary  to  constitute  a 
title  by  prescription  must  be  uninter- 
rupted and  peaceable,  both  according  to 
the  law  of  England,  the  civil  law,  and 
those  of  France,  Normandy,  and  Jersey. 
But,  where  artificial  cuts  or  recesses 
have  been  made  on  the  sea-shore,  into 
and  over  which  the  sea  afterwards  flows, 
then,  in  the  absence  of  proof  as  to  acts 
of  ownership,  the  soil  of  these  recesses 
is  to  be  presumed  to  have  belonged  to 
the  owner  of  the  adjacent  estate,  and 
not  to  the  crown.  Lowe  v.  Govett,  3  Bar. 
&  Adol.  863.— C. 

203 


125  OF   THE   SEA. 

BOOK  r.    making  of  salt,  and  finally,  for  the  establishment  of  places  of 
CHAP,  xxni.  retreat  and  security  for  vessels. 

g  280.  Whe-  The  open  sea  is  not  of  such  a  nature  as  to  admit  the  holding 
t'her  the  sea  possession  of  it,  since  no  settlement  can  be  formed  on  it,  so 
can  be  pos-  as  J.Q  nm(jer  others  from  passing.  But  a  nation  powerful  at 
itTdomi"1  sea  mav  f°rDid  others  to  fish  in  it  and  to  navigate  it ;  declar- 
nion  appro-  ing  that  she  appropriates  to  herself  the  dominion  over  it,  and 
priated.  that  she  will  destroy  the  vessels  that  shall  dare  to  appear  in 

it  without  her  permission.  Let  us  see  whether  she  has  a  right 

to  do  this. 

g  281.  No-  It  is  manifest  that  the  use  of  the  open  sea,  which  consists 
body  has  a  in  navigation  and  fishing,  is  innocent  and  inexhaustible  ;  that 
right  to  ap-  js  to  g  — ne  k0  naviorates  or  fishes  in  the  open  sea  does  no 

propnate  to  .    .          r'  , e ,  .      , ,  •         tc 

himself  the  injurj  to  any  one,  and  the  sea,  in  these  two  respects,  is  sum- 
use  of  the  cient  for  all  mankind.  Now,  nature  does  not  give  to  man  a 
open  sea.  right  of  appropriating  to  himself  things  that  may  be  inno- 
cently used,  and  that  are  inexhaustible,  and  sufiicient  for  all. 
For,  since  those  things,  while  common  to  all,  are  sufiicient  to 
supply  the  wants  of  each, — whoever  should,  to  the  exclusion 
of  all  other  participants,  attempt  to  render  himself  sole  pro- 
T  126  ]  prietor  of  them,  would  unreasonably  wrest  the  bounteous  gifts 
of  nature  from  the  parties  excluded.  The  earth  no  longer 
furnishing,  without  culture,  the  things  necessary  or  useful  to 
the  human  race,  who  were  extremely  multiplied,  it  became 
necessary  to  introduce  the  right  of  property,  in  order  that 
each  might  apply  himself  with  more  success  to  the  cultivation 
of  what  had  fallen  to  his  share,  and  multiply,  by  his  labour, 
the  necessaries  and  conveniences  of  life.  It  is  for  this  reason 
the  law  of  nature  approves  the  rights  of  dominion  and  pro- 
perty, which  put  an  end  to  the  primitive  manner  of  living  in 
common.  But  this  reason  cannot  apply  to  things  which  are 
in  themselves  inexhaustible;  and,  consequently,  it  cannot 
furnish  any  just  grounds  for  seizing  the  exclusive  possession 
of  them.  If  the  free  and  common  use  of  a  thing  of  this  na- 
ture was  prejudicial  or  dangerous  to  a  nation,  the  care  of  their 
own  safety  would  authorize  them  to  reduce  that  thing  under 
their  own  dominion,  if  possible,  in  order  to  restrict  the  use 
of  it  by  such  precautions  as  prudence  might  dictate  to  them. 
But  this  is  not  the  case  with  the  open  sea,  on  which  people 
may  sail  and  fish  without  the  least  prejudice  to  any  person 
whatsoever,  and  without  putting  any  one  in  danger.  No 
nation,  therefore,  has  a  right  to  take  possession  of  the  open 
sea,  or  claim  the  sole  use  of  it,  to  the  exclusion  of  other 
nations.  The  kings  of  Portugal  formerly  arrogated  to  them- 
selves the  empire  of  the  seas  of  Guinea  and  the  East  Indies;* 
but  the  other  maritime  powers  gave  themselves  little  trouble 
about  such  a  pretension. 

The  right  of  navigating  and  fishing  in  the  open  sea  being 

*  See  Grotius's  Mare  Liberum,  and  Selden's  Mare  Clausum,  lib.  i.  cap.  xrii. 
204 


OF   THE    SEA.  126 

then  a  right  common  to  all  men,  the  nation  that  attempts  to    BOOK  r. 
exclude  another  from  that  advantage  does  her  an  injury,  and  CHAP-  XX111' 


furnishes  her  with  sufficient  grounds  for  commencing  hostili-  §  282.    The 
ties,  since  nature  authorizes  a  nation  to  repel  an  injury — that nation  that 
is,  to  make  use  of  force  against  whoever  would  deprive  her  J^JJJJ8  to 

of  her  rights.  another, 

Nay,  more, — a  nation,  which,  without  a  legitimate  claim,  does  it  an 
would  arrogate  to  itself  an  exclusive  right  to  the  sea,  and  jtfjjy- 
support  its  pretensions  by  force,  does  an  injury  to  all  nations  ;  jjven  'doeg 
it  infringes  their  common  right ;  and  they  are  justifiable  in  an  injury  to 
forming  a  general  combination  against  it,  in  order  to  repress  all  nations, 
such  an  attempt.     Nations  have  the  greatest  interest  in  caus- 
ing the  law  of  nations,  which  is  the  basis  of  their  tranquil- 
lity, to  be  universally  respected.     If  any  one  openly  tram- 
ples it  under  foot,  they  all  may  and  ought  to  rise  up  against 
him ;  and,  by  uniting  their  forces  to  chastise  the  common 
enemy,  they  will  discharge  their  duty  towards  themselves, 
and  towards   human   society,   of  which   they  are   members 
(Prelim.  §  22). 

However,  as  every  one  is  at  liberty  to  renounce  his  right,  §  284.    it 
a  nation  may  acquire  exclusive  rights  of  navigation  and  fish-may  acquiro 
ing,  by  treaties,  in  which  other  nations  renounce  in  its  favour  a.n  B1 
the  rights  they  derive  from  nature.     The  latter  are  obliged  "s 
to  observe  their  treaties ;  and  the  nation  they  have  favoured 
has  a  right  to  maintain  by  force  the  possession  of  its  advan- 
tages.    Thus,  the  house  of  Austria  has  renounced,  in  favour  [  127  ] 
of  England  and  Holland,  the  right  of  sending  vessels  from 
the  Netherlands  to  the  East  Indies.     In  G-rotius,  de  Jure 
Belli  et  Pads,  lib.  ii.  cap.  iii.  §  15,  may  be  found  many 
instances  of  similar  treaties. 

As  the  rights  of  navigation  and  of  fishing,  and  other  rights  §  285.  but 
which  may  be  exercised  on  the  sea,  belong  to  the  class  of  not;  b7  ?re* 
those  rights  of  mere  ability  (jura  merce  facultatis),  which  ^^g 
are  imprescriptible  (§  95),  they  cannot  be  lost  for  want  of  use.  Use,(77) 
Consequently,  although  a  nation  should  happen  to  have  been, 
from  time  immemorial,  in  sole  possession  of  the  navigation 
or  fishery  in  certain  seas,  it  cannot,  on  this  foundation,  claim 
an  exclusive  right  to  those  advantages.     For,  though  others 
have  not  made  use  of  their  common  right  to  navigation  and 
fishery  in  those  seas,  it  does  not  thence  follow  that  they  have 
had  any  intention  to  renounce  it ;   and  they  are  entitled  to 
exert  it  whenever  they  think  proper.  (78) 

But  it  may  happen  that  the  non-usage  of  the  right  may  §  286.  un- 
assume  the  nature  of  a  consent  or  tacit  agreement,  and  thus less  b^  vir; 
become  a  title  in  favour  of  one  nation  against  another.  When  ^u* " 
a  nation  that  is  in  possession  of  the  navigation  and  fishery 

(77)  See  observations  and  authorities,  tion  not  successfully  litigated  will  pre- 
1  Chit.  Com,  L.  287,  n.  4,  5.  vent  a  right,  see  the  judgment  in  JBenest 

(78)  As  to  the  effect  of  twenty  years'  v.  Pipon,  Knapp's  Rep.  67. — C. 
uninterrupted  use,  and  what  interrup- 

8  205 


127  OF   THE    SEA. 

BOOK  i.  in  certain  tracts  of  sea  claims  an  exclusive  right  to  them,  and 
CHAP,  xxm.  forfodg  aj}  participation  on  the  part  of  other  nations, — if  the 
others  obey  that  prohibition  with  sufficient  marks  of  acquies- 
cence, they  tacitly  renounce  their  own  right  in  favour  of  that 
nation,  and  establish  for  her  a  new  right,  which  she  may  after- 
wards lawfully  maintain  against  them,  especially  when  it  is 
confirmed  by  long  use.  (79) 

§  287.  The  The  various  uses  of  the  sea,  near  the  coasts  render  it  very 
sea  near  the  susceptible  of  property.  It  furnishes  fish,  shells,  pearls,  am- 
becomeT7  ^er,  &c-  ^ow,  *n  a11  ^ese  respects,  its  use  is  not  inexhausti- 
property.  ble :  wherefore,  the  nation,  to  whom  the  coasts  belong,  may 
appropriate  to  themselves,  and  convert  to  their  own  profit, 
an  advantage  which  nature  has  so  placed  within  their  reach 
as  to  enable  them  conveniently  to  take  possession  of  it,  in 
the  same  manner  as  they  possessed  themselves  of  the  domi- 
nion of  the  land  they  inhabit.  Who  can  doubt  that  the  pearl 
fisheries  of  Bahrem  and  Ceylon  may  lawfully  become  pro- 
perty ?  And  though,  where  the  catching  of  fish  is  the  only 
object,  the  fishery  appears  less  liable  to  be  exhausted,  yet,  if 
a  nation  have  on  their  coast  a  particular  fishery  of  a  profita- 
ble nature,  and  of  which  they  may  become  masters,  shall  they 
not  be  permitted  to  appropriate  to  themselves  that  bounteous 
gift  of  nature,  as  an  appendage  to  the  country  they  possess, 
and  to  reserve  to  themselves  the  great  advantages  which  their 
commerce  may  thence  derive  in  case  there  be  a  sufficient 
abundance  of  fish  to  furnish  the  neighbouring  nations  ?  But 
if,  so  far  from  taking  possession  of  it,  the  nation  has  once 
acknowledged  the  common  right  of  other  nations  to  come  and 
fish  there,  it  can  no  longer  exclude  them  from  it ;  it  has  left 
that  fishery  in  its  primitive  freedom,  at  least  with  respect  to 
those  who  have  been  accustomed  to  take  advantage  of  it. 
The  English  not  having  originally  taken  exclusive  possession 
of  the  herring  fishery  on  their  coasts,  it  is  become  common 
[  128  ]  to  them  with  other  nations. 

g  288.   An-      A  nation  may  appropriate  to  herself  those  things  of  which 
other  reason  tne  free  an(j  common  use  would  be  prejudicial  or  dangerous 
f'riatin>r°the  *°  ^er'     ^*"8  ia  a  second  reason  for  which  governments  ex- 
seaVorder-6  *en^  their  dominion  over  the  sea  along  their  coasts  as  far  as 
ing  on  the    they  are  able  to  protect  their  right.    It  is  of  considerable  im- 
coasts.  (80)   portance  to  the  safety  and  welfare  of  the  state  that  a  general 
liberty  be  not  allowed  to  all  comers  to  approach  so  near  their 
possessions,  especially  with  ships  of  war,  as  to  hinder  the  ap- 
proach of  trading  nations,  and  molest  their  navigation.    Dur- 
ing the  war  between  Spain  and  the  United  Provinces,  James  L, 
king  of  England,  marked  out  along  his  coasts  certain  bound- 
aries, within  which  he  declared  that  he  would  not  suffer  any 
of  the  powers  at  war  to  pursue  their  enemies,  nor  even  allow 

(79)  See  further,  1  Chit  Com.  L.  94,         (80)  See  further,  1  Chit.  Com.  L.  92, 
n.  1 ;  ib.  98,  a.  1.— C.  n.  2 ;  ib.  94,  n.  1 ;  ib.  95,  n.  1 ;  Puff.  b. 

3,  c.  3,  a.  6,  p.  69.— C. 
206 


OF  THE   SEA.  128 

their  armed  vessels  to  stop  and  observe  the  ships  that  should  BOOK  i. 
enter  or  sail  out  of  the  ports.*  These  parts  of  the  sea,  thus  CHAP'  XXI"' 
subject  to  a  nation,  are  comprehended  in  her  territory  ;  nor 
must  any  one  navigate  them  without  her  consent.  But,  to 
vessels  that  are  not  liable  to  suspici9n,  she  cannot,  without  a 
breach  of  duty,  refuse  permission  to  approach  for  harmless 
purposes,  since  it  is  a  duty  incumbent  on  every  proprietor  to 
allow  to  strangers  a  free  passage,  even  by  land,  when  it  may 
be  done  without  damage  or  danger.  It  is  true  that  the  state 
itself  is  sole  judge  of  what  is  proper  to  be  done  in  every  par- 
ticular case  that  occurs  ;  and,  if  it  judges  amiss,  it  is  to 
blame  :  but  the  others  are  bound  to  submit.  It  is  otherwise, 
however,  in  cases  of  necessity, — as,  for  instance,  when  a  ves- 
sel is  obliged  to  enter  a  road  which  belongs  to  you,  in  order 
to  shelter  herself  from  a  tempest.  In  this  case,  the  right  of 
entering  wherever  we  can,  provided  we  cause  no  damage,  or 
that  we  repair  any  damage  done,  is,  as  we  shall  show  more  at 
large,  a  remnant  of  the  primitive  freedom  of  which  no  man 
can  be  supposed  to  have  divested  himself;  and  the  vessel 
may  lawfully  enter  in  spite  of  you,  if  you  unjustly  refuse  her 
permission. 

It  is  not  easy  to  determine  to  what  distance  a  nation  may  §  289.  How 
extend  its  rights  over  the  sea  by  which  it  is  surrounded.  Bo- far  *his  P°S- 
dinusf  pretends,  that  according  to  the  common  right  of  all  ^^  ?8^ 
maritime  nations,  the  prince's  dominion  extends  to  the  distance 
of  thirty  leagues  from  the  coast.  But  this  exact  determina- 
tion can  only  be  founded  on  a  general  consent  of  nations, 
which  it  would  be  difficult  to  prove.  Each  state  may,  on  this 
head,  make  what  regulation  it  pleases  so  far  as  respects  the 
transactions  of  the  citizens  with  each  other,  or  their  concerns 
with  the  sovereign :  but,  between  nation  and  nation,  all  that 
can  reasonably  be  said  is,  that  in  general,  the  dominion  of  the 
state  over  the  neighbouring  sea  extends  as  far  as  her  safety 
renders  it  necessary  and  her  power  is  able  to  assert  it ;  since, 
on  the  one  hand,  she  cannot  appropriate  to  herself  a  thing 
that  is  common  to  all  mankind,  such  as  the  sea,  except  so  far 
as  she  has  need  of  it  for  some  lawful  end  (§  281),  and,  on  the 
other,  it  would  be  a  vain  and  ridiculous  pretension  to  claim  a  [  129  ] 
right  which  she  were  wholly  unable  to  assert.  The  fleets  of 
England  have  given  room  to  her  kings  to  claim  the  empire  of 
the  seas  which  surround  that  island,  even  as  far  as  the  opposite 
coasts. |  Selden  relates  a  solemn  act,§  by  which  it  appears, 
that,  in  the  time  of  Edward  I.,  that  empire  was  acknowledged 
by  the  greatest  part  of  the  maritime  nations  of  Europe  ;  and 
the  republic  of  the  United  Provinces  acknowledged  it,  in  some 

*  Selden's  Mare  Clausum,  lib.  ii.  f  In  his  Republic,  book  i.  c.  x. 

(81)  See  further,  Puff.  b.  4,  c.  5,  s.  9,        j  See  Selden's  Mare  Clausum. 
pp.  167,  8;  1   Chit.  Com.  L.  99,  n.  1 ;        g  Ibid.  lib.  2,  cap.  xxviii. 
ib.  100,  n.  1 ;  ib.  101,  n.  2 ;  ib.  101,  n. 
4;  ib.287,  n.  7;  ib.  441,  n.  5.  207 


lUy  OF   THE   SEA. 

BOOK  i.  measure,  by  the  treaty  of  Breda,  in  1667,  at  least  so  far  as 
CHAP,  xxin.  re|ated  to  the  honours  of  the  flag.  But  solidly  to  establish  a 
right  of  such  extent,  it  were  necessary  to  prove  very  clearly 
the  express  or  tacit  consent  of  all  the  powers  concerned.  The 
French  have  never  agree4  to  this  pretension  of  England ;  and, 
in  that  very  treaty  of  Breda  just  mentioned,  Louis  XIV.  would 
not  even  suffer  the  channel  to  be  called  the  English  channel, 
or  the  British  sea.  The  republic  of  Venice  claims  the  empire 
of  the  Adriatic,  and  everybody  knows  the  ceremony  annually 
performed  upon  that  account.  In  confirmation  of  this  right 
we  are  referred  to  the  examples  of  Uladislaus,  king  of  Naples, 
of  the  emperor  Frederic  III.,  and  of  some  of  the  kings  of 
Hungary,  who  asked  permission  of  the  Venetians  for  their 
vessels  to  pass  through  that  sea.*  That  the  empire  of  the 
Adriatic  belongs  to  the  republic  to  a  certain  distance  from  her 
coasts,  in  the  places  of  which  she  can  keep  possession,  and  of 
which  the  possession  is  important  to  her  own  safety,  appears 
to  me  incontestable :  but  I  doubt  very  much  whether  any 
power  is  at  present  disposed  to  acknowledge  her  sovereignty 
over  the  whole  Adriatic  sea.  Such  pretensions  to  empire  are 
respected  as  long  as  the  nation  that  makes  them  is  able  to 
assert  them  by  force ;  but  they  vanish  of  course  on  the  decline 
of  her  power.  At  present  the  whole  space  of  the  sea  within 
cannon  shot  of  the  coast  is  considered  as  making  a  part  of 
the  territory ;  and,  for  that  reason,  a  vessel  taken  under  the 
cannon  of  a  neutral  fortress  is  not  a  lawful  prize.  (82) 
g  290.  The  shores  of  the  sea  incontestably  belong  to  the  nation 

Shores  and  that  possesses  the  country  of  which  they  are  a  part ;  and  they 
ports.  (83)  belong  to  the  class  of  public  things.  If  civilians  have  set 
them  down  as  things  common  to  all  mankind  (res  communes), 
it  is  only  in  regard  to  their  use ;  and  we  are  not  thence  to 
conclude  that  they  considered  them  as  independent  of  the 
empire :  the  very  contrary  appears  from  a  great  number  of 
laws.  Ports  and  harbours  are  manifestly  an  appendage  to 
and  even  a  part  of  the  country,  and  consequently  are  the 
property  of  the  nation.  Whatever  is  said  of  the  land  itself 
will  equally  apply  to  them,  so  far  as  respects  the  consequences 
of  the  domain  and  of  the  empire. 

I  291.  Bays  All  we  have  said  of  the  parts  of  the  sea  near  the  coast,  may 
and  straits,  be  said  more  particularly,  and  with  much  greater  reason,  of 
(84)  roads,  bays,  and  straits,  as  still  more  capable  of  being  pos- 

[  130  ]  sessed,  and  of  greater  importance  to  the  safety  of  the  country. 
But  I  speak  of  bays  and  straits  of  small  extent,  and  not  of 

*  See  Selden's  Mare  Clausum,  lib.  i.    right  to  cut  sea-weed  on  rocks  situate 
cap.  xvi.  below  low-water  mark,  but  by  express 

(82)  Pott,  b.  3,  c.  7,  g  132,  p.  344. — C.    grant  from  the  king,  or  uninterrupted 

(83)  See    further   1    Chitty's    Com-    presumption.     Benest  v.  Pipon,  Knapp's 
mercial  Law,  100,  n.  2.     The  sea-shore,     Rep.  67. 

below  low-water  mark,  primd  facie  be-  (84)  See  1  Chitty's  Commercial  Law, 

longs   to  the  king  and  all  his  subjects,  100,  n.  3. — C. 
and  no  subject  can  claim  an  exclusive 
208 


OP  THE   SEA.  130 

those  great  tracts  of  sea  to  which  these  names  are  sometimes     BOOK  i. 
given,  as  Hudson's  Bay  and  the  Straits  of  Magellan,  over CHAP-  XXIIt- 
which  the  empire  cannot  extend,  and  still  less  a  right  of  pro- 
perty.    A  bay,  whose  entrance  can  be  defended,  may  be  pos- 
sessed and  rendered  subject  to  the  laws  of  the  sovereign ;  and 
it  is  important  that  it  should  be  so,  since  the  country  might 
be  much  more  easily  insulted  in  such  a  place,  than  on  the 
coast  that  lies  exposed  to  the  winds  and  the  impetuosity  of 
the  waves. 

It  must  be  remarked,  with  regard  to  straits,  that,  when  §  292. 
they  serve  for  a  communication  between  two  seas,  the  naviga- straits  in 
tion  of  which  is  common  to  all,  or  several  nations,  the  nation 
which  possesses  the  strait  cannot  refuse  the  others  a  passage 
through  it,  provided  that  passage  be  innocent  and  attended 
with  no  danger  to  herself.  By  refusing  it  without  just  reasons, 
she  would  deprive  those  nations  of  an  advantage  granted  them 
by  nature ;  and  indeed,  the  right  to  such  a  passage  is  a  rem- 
nant of  the  primitive  liberty  enjoyed  by  all  mankind.  No- 
thing but  the  care  of  his  own  safety  can  authorize  the  owner 
of  the  strait  to  make  use  of  certain  precautions,  and  to  require 
certain  formalities,  commonly  established  by  the  custom  of 
nations.  He  has  a  right  to  levy  a  moderate  tax  on  the  ves- 
sels that  pass,  partly  on  account  of  the  inconvenience  they 
give  him,  by  obliging  him  to  be  on  his  guard — partly  as  a 
return  for  the  safety  he  procures  them  by  protecting  them 
from  their  enemies,  by  keeping  pirates  at  a  distance,  and  by 
defraying  the  expense  attendant  on  the  support  of  light-houses, 
sea-marks,  and  other  things  necessary  to  the  safety  of  mari- 
ners. Thus,  the  king  of  Denmark  requires  a  custom  at  the 
straits  of  the  Sound.  Such  j  ight  ought  to  be  founded  on  the 
same  reasons,  and  subject  to  the  same  rules,  as  the  tolls  estab- 
lished on  land,  or  on  a  river.  (See  §§  103  and  104.) 

It  is  necessary  to  mention  the  right  to  wrecks — a  right  which  §  293. 
was  the  wretched  offspring  of  barbarism,  and  which  has  almost  Risht  to 
everywhere  fortunately  disappeared  with  its  parent.     Justice  wrecks<  (86) 
and  humanity  cannot  allow  of  it,  except  in  those  cases  only 
where  the  proprietors  of  the  effects  saved  from  a  wreck  cannot 
possibly  be  discovered.     In  such  cases,  those  effects  belong  to 
the  person  who  is  the  first  to  take  possession  of  them,  or  to 
the  sovereign,  if  the  law  reserves  them  for  him. 

If  a  sea  is  entirely  enclosed  by  the  territories  of  a  nation,  §  294.    A 
and  has  no  other  communication  with  the  ocean  than  by  a  se.a  enclosed 
channel  of  which  that  nation  may  take  possession,  it  appear s^J™^*^ 
that  such  a  sea  is  no  less  capable  of  being  occupied,  and  be-  a  nation!  ° 
coming  property,  than  the  land ;  and  it  ought  to  follow  the 

(85)  See  1  Chitty's  Commercial  Law,  in  general  modern  cases,  Ship  Augusta, 
101,  n.  1.— C.  1  Hagg.  Rep.  16 ;  and  The  Bailiffs,  &c., 

(86)  The  right  to  wreck  is  not  unfre-  of  Dumcich  v.  Sterry,  1  Barn.  &  Adolph. 
quently  the  subject  of  litigation  in  the  831. C. 

Municipal  Courts  of  Great  Britain ;  see 

27  s  2  209 


130  OF  THE   SEA. 

BOOK  r.  fate  of  the  country  that  surrounds  it.  The  Mediterranean, 
CHAP,  xxiii.  jn  former  times,  was  absolutely  enclosed  within  the  territories 
of  the  Romans ;  and  that  people,  by  rendering  themselves 
masters  of  the  strait  which  joins  it  to  the  ocean,  might  subject 
the  Mediterranean  to  their  empire,  and  assume  the  dominion 
over  it.  They  did  not,  by  such  procedure,  injure  the  rights 
of  other  nations ;  a  particular  sea  being  manifestly  designed 
[  131  ]  by  nature  for  the  use  of  the  countries  and  nations  that  sur- 
round it.  Besides,  by  barring  the  entrance  of  the  Mediter- 
ranean against  all  suspected  vessels,  the  Romans,  by  one  single 
stroke,  secured  the  immense  extent  of  their  coasts :  and  this 
reason  was  sufficient  to  authorize  them  to  take  possession  of 
it.  And,  as  it  had  absolutely  no  communication  but  with  the 
states  which  belonged  to  them,  they  were  at  liberty  to  permit 
or  prohibit  the  entrance  into  it,  in  the  same  manner  as  into 
any  of  their  towns  or  provinces. 

§  295.   The      When  a  nation  takes  possession  of  certain  parts  of  the  sea, 

parts  of  the  ^  takes  possession  of  the  empire  over  them,  as  well  as  of  the 

ed^Ta*688"  domain,  on  the  same  principle  which  we  advanced  in  treating 

power  are     of  the  land  (§  205).     These  parts  of  the  sea  are  within  the 

within  its     jurisdiction  of  the  nation,  and  a  part  of  its  territory :  the 

jurisdiction,  sovereign  commands  there ;  he  makes  laws,  and  may  punish 

those  who  violate  them ;  in  a  word,  he  has  the  same  rights 

there  as  on  land,  and,  in  general,  every  right  which  the  laws 

of  the  state  allow  him. 

It  is,  however,  true  that  the  empire  and  the  domain,  or  pro- 
perty, are  not  inseparable  in  their  own  nature,  even  in  a  sove- 
reign state.*  As  a  nation  may  possess  the  domain  or  pro- 
perty of  a  tract  of  land  or  sea,  without  having  the  sovereignty 
of  it,  so  it  may  likewise  happen  that  she  shall  possess  the 
sovereignty  of  a  place,  of  which  the  property  or  the  domain, 
with  respect  to  use,  belongs  to  some  other  nation.  But  it  is 
always  presumed,  that,  Avhen  a  nation  possesses  the  useful 
domain  of  any  place  whatsoever,  she  has  also  the  higher  do- 
main and  empire,  or  the  sovereignty  (§  205).  We  cannot, 
however,  from  the  possession  of  the  empire,  infer,  with  equal 
probability,  a  coexistent  possession  of  the  useful  domain ; 
for,  a  nation  may  have  good  reasons  for  claiming  the  empire 
over  a  country,  and  particularly  over  a  tract  of  sea,  with- 
out pretending  to  have  any  property  in  it,  or  any  useful  do- 
main. The  English  have  never  claimed  the  property  of  all 
the  seas  over  which  they  have  claimed  the  empire.  (88) 

(87)  See  further,  1  Chitty's  Commer-    mercial  Law,    101,    2,  3.      As    to    the 
cial  Law,  95,  n.  3 ;  Qrotius,  b.  2,  c.  3,  a.     duty  of  the  flay,  or  the  obligation  upon 
13,  p.  166. — C.  other  nations  to  pay  a  particular  mark 

*  See  Book  II.  §  83.  of  respect   to   British    men-of-war,   by 

(88)  As  to  the  British  seas,  and  the  striking   their    flag  or  lowering    their 
claims  of  the  English  of  empire  over  topsail,  formerly  claimed,   and   so   ob- 
the  seas  in  general,  see  Selden's  Mare  noxious   to    foreign    shipping,    see    id. 
Clausum,  b.  2,  c.  1,  p.  182,  and  other  101,  2 ;  Molloy,  b.  1,  c.  5,  ss.  11 ;  and 
authorities   collected   1    Chitty's    Com-  see  Postlewaite's  Diet,  tit  Sea,  British ; 

210 


OF    THE    SEA.  131 

This  is  all  we  have  to  say  in  this  first  book.  A  more  mi-  BOOK  i. 
nute  detail  of  the  duties  and  rights  of  a  nation,  considered  in  CHAP-  xxlir- 
herself,  would  lead  us  too  far.  Such  detail  must,  as  we  have 
already  observed,  be  sought  for  in  particular  treatises  on  the 
public  and  political  law.  We  are  very  far  from  flattering 
ourselves  that  we  have  omitted  no  important  article  ;  this 
is  a  slight  sketch  of  an  immense  picture  :  but  an  intelligent 
reader  will  without  difficulty  supply  all  our  omissions  by  mak- 
ing a  proper  application  of  the  general  principles :  we  have 
taken  the  utmost  care  solidly  to  establish  those  principles, 
and  to  develop  them  with  precision  and  perspicuity. 

Marten's  L.  Nat.  168,  9—172,  175 ;  Com.  tween  ships,  see   Court  de  Droit  Public 

Dig.   Navigation,    A.     And,  as   to    the  Interne  et  Externe,  torn.  2,  p.  30  to  84, 

French  view  of  the  right  of  the  sea,  and  id.  396  to  406. — C. 
and  of  the  respects  to  be  observed  "03- 

211 


133 


BOOK  II. 


OF  A  NATION  CONSIDERED  IN  ITS  RELATION  TO 
OTHERS. 


CHAP.  I. 


OF  THE   OFFICES   OF   HUMANITY    BETWEEN   NATIONS. 


t.    Foun-  1  HE  following  maxims  will  appear  very  strange  to  cabinet 
tion'of      politicians ;  and  such  is  the  misfortune  of  mankind,  that,  to 


II. 

datio 

t  e  common  manv  Of  those  refined  conductors  of  nations,  the  doctrine  of 

and  mutual     ,  .    J .  .,,   .  ,  .  „      .  ..  ' 

duties  of  this  chapter  will  be  a  subject  of  ridicule.  Be  it  so  ;  but  we 
nations,  will,  nevertheless,  boldly  lay  down  what  the  law  of  nature 
prescribes  to  nations.  Shall  we  be  intimidated  by  ridicule, 
when  we  speak  after  Cicero  ?  That  great  man  held  the  reins 
of  the  most  powerful  state  that  ever  existed ;  and  in  that 
station  he  appeared  no  less  eminent  than  at  the  bar.  The 
punctual  observance  of  the  law  of  nature  he  considered  as 
the  most  salutary  policy  to  the  state.  In  my  preface,  I  have 
already  quoted  this  fine  passage — Nihil  est  quod  adhuc  de 
republica  putem  dictum,  et  quo  possim  longius  progredi,  nisi 
sit  confirmatum,  non  modo  falsum  esse  illud,  sine  injuria  non 
posse,  sed  hoc  verissimum,  sine  summa  justitia  rempublicam 
regi  non  posse.*  I  might  say  on  good  grounds,  that,  by  the 
words  summa  justitia,  Cicero  means  that  universal  justice 
which  consists  in  completely  fulfilling  the  law  of  nature.  But 
in  another  place  he  explains  himself  more  clearly  on  this 
head,  and  gives  us  sufficiently  to  understand  that  he  does  not 
[  134  ]  confine  the  mutual  duties  of  men  to  the  observance  of  justice, 
properly  so  called.  "Nothing,"  says  he,  "is  more  agree- 
able to  nature,  more  capable  of  affording  true  satisfaction, 
than,  in  imitation  of  Hercules,  to  undertake  even  the  most 
arduous  and  painful  labours  for  the  benefit  and  preservation 
of  all  nations."  Magis  est  secundum  naturam,  pro  omnibus 
gentibus,  si  fieri  possit,  conservandis  aut  juvandis,  maximos 
labores  molestiasque  suscipere,  imitantem  Herculem  ilium, 
quem  hominum  fama,  beneficiorum  memor,  in  concilium  cce- 
lestium  collocavit,  quam  vivere  in  solitudine,  non  modo  sine 

*  Fragm.  ex  lib.  ii.  De  Republica. 
212 


COMMON   DUTIES    OF   A   NATION,    ETC.  13-1 

ullis  molestiis,  sed  etiam  in  maximis  voluptatibus,  dbundan-  BOOK  n. 
tern  omnibus  copiis,  ut  excellas  etiam  pulchritudine  et  viribus.  CHAP'  Ij 
Quocirca  optima  quisque  et  splendidissimo  ingenio  longe  illam 
vitam  Jiuic  anteponit.*  In  the  same  chapter,  Cicero  ex- 
pressly refutes  those  who  are  for  excluding  foreigners  from 
the  benefit  of  those  duties  to  which  they  acknowledge  them- 
selves bound  towards  their  fellow-citizens.  Qui  autem  civium 
rationem  dicunt  habendam,  externorum  negant,  hi  dirimunt 
communem  humani  generis  societatem;  qua  sublata,  benefi- 
centia,  liberalitas,  bonitas,  justitia,  funditus  tollitur ;  quse 
qui  tollunt,  etiam  adversus  Deos  immortales  impii  judicandi 
sunt;  ab  Us  enim  constitutam  inter  homines  societatem  ever- 
tunt. 

And  why  should  we  not  hope  still  to  find,  among  those 
who  are  at  the  head  of  affairs,  some  wise  individuals  who  are 
convinced  of  this  great  truth,  that  virtue  is,  even  for  sove- 
reigns and  political  bodies,  the  most  certain  road  to  prosperity 
and  happiness  ?  There  is  at  least  one  benefit  to  be  expected 
from  the  open  assertion  and  publication  of  sound  maxims, 
which  is,  that  even  those  who  relish  them  the  least  are  there- 
by laid  under  a  necessity  of  keeping  Avithin  some  bounds,  lest 
they  should  forfeit  their  characters  altogether.  To  flatter 
ourselves  with  the  vain  expectation  that  men,  and  especially 
men  in  power,  will  be  inclined  strictly  to  conform  to  the  laws 
of  nature,  would  be  a  gross  mistake ;  and  to  renounce  all 
hope  of  making  impression  on  some  of  them,  would  be  to 
give  up  mankind  for  lost. 

Nations,  being  obliged  by  nature  reciprocally  to  cultivate 
human  society  (Prelim.  §  11),  are  bound  to  observe  towards 
each  other  all  the  duties  which  the  safety  and  advantage  of 
that  society  require. 

The  offices  of  humanity  are  those  succours,  those  duties,  I  2.    Offices 
which  men  owe  to  each  other,  as  men, — that  is,  as  social  be- of  humani- 
ings  formed  to  live  in  society,  and  standing  in  need  of  mu- theiTfoun 
tual  assistance  for  their  preservation  and  happiness,  and  to  dation. 
enable  them  to  live  in  a  manner  conformable  to  their  nature. 
Now,  the  laws  of  nature  being  no  less  obligatory  on  nations 
than  on  individuals  (Prelim.  §  5),  whatever  duties  each  man 
oives  to  other  men,  the  same  does  each  nation,  in  its  way.  owe 
to  other  nations  (Prelim.  §  10,  &c.).     Such  is  the  foundation 
of  those  common  duties — of  those  offices  of  humanity — to 
which  nations  are   reciprocally  bound   towards  each  other. 
They  consist,  generally,  in  doing  every  thing  in  our  power  [  1-35  ] 
for  the  preservation  and  happiness  of  others,  as  far  as  such 
conduct  is  reconcilable  with  our  duties  towards  ourselves. 

The  nature  and  essence  of  man,  who,  without  the  assist-  §  3.  Gene- 
ance  of  his  fellow-men,  is  unable  to  supply  all  his  wants,  to ral  PrlnciPle 
preserve  himself,  to  render  himself  perfect,  and  to  live  hap-  ^u^a*  Ju_ 

—  ties  of  nh- 

*  De  Officiis,  lib.  iii.  cap.  5.  tious. 

213 


135  COMMON   DUTIES   OF   A   NATION 

BOOK  n.  pily,  plainly  show  us  that  he  is  destined  to  live  in  society,  in 
_  CHAP.  i.  ^e  interchange  of  mutual  aid ;  and,  consequently,  that  all 
men  are,  by  their  very  nature  and  essence,  obliged  to  unite 
their  common  efforts  for  the  perfection  of  their  own  being 
and  that  of  their  condition.  The  surest  method  of  succeed- 
ing in  this  pursuit  is,  that  each  individual  should  exert  his 
efforts  first  for  himself  and  then  for  others.  Hence  it  fol- 
lows, that,  whatever  we  owe  to  ourselves,  we  likewise  owe  to 
others,  so  far  as  they  stand  in 'need  of  assistance,  and  we  can 
grant  it  to  them  without  being  wanting  to  ourselves.  Since, 
then,  one  nation,  in  its  way,  otves  to  another  nation  every  duty 
that  one  man  owes  to  another  man,  we  may  confidently  lay 
down  this  general  principle : — one  state  owes  to  another  state 
whatever  it  owes  to  itself,  so  far  as  that  other  stands  in  real 
need  of  its  assistance,  and  the  former  can  grant  it  without 
neglecting  the  duties  it  owes  to  itself.  Such  is  the  eternal 
and  immutable  law  of  nature.  Those  who  might  be  alarmed 
at  this  doctrine,  as  totally  subversive  of  the  maxims  of  sound 
policy,  will  be  relieved  from  their  apprehensions  by  the  two 
following  considerations : — 

1.  Social  bodies  or  sovereign  states  are  much  more  capa- 
ble of  supplying  all  their  wants  than  individual  men  are ; 
and  mutual  assistance  is  not  so  necessary  among  them,  nor 
so  frequently  required.     Now,  in  those  particulars  which  a 
nation  can  itself  perform,  no  succour  is  due  to  it  from  others. 

2.  The  duties  of  a  nation  towards  itself,  and  chiefly  the 
care  of  its  own  safety,  require  much  more  circumspection  and 
reserve  than  need  be  observed  by  an  individual  in  giving  as- 
sistance to  others.     This  remark  we  shall  soon  illustrate. 

§  4.    Duties      Of  all  the  duties  of  a  nation  towards  itself,  the  chief  ob- 
of  a  nation    ject  is  its  preservation  and  perfection,  together  with  that  of 

servationTf  itS  State'      The  detail  giv<m  °f  them  in  the  firSt   b°°k  °f  thi8 

others!°n  °  work  may  serve  to  point  out  the  several  objects  in  relation  to 
which  a  state  may  and  should  assist  another  state.  Every 
nation  ought,  on  occasion,  to  labour  for  the  preservation  of 
others,  and  for  securing  them  from  ruin  and  destruction,  as 
far  as  it  can  do  this  without  exposing  itself  too  much.  Thus, 
when  a  neighbouring  nation  is  unjustly  attacked  by  a  power- 
ful enemy  who  threatens  to  oppress  it,  if  you  can  defend  it, 
without  exposing  yourself  to  great  danger,  unquestionably  it 
is  your  duty  to  do  so.  Let  it  not  be  said,  in  objection  to 
this,  that  a  sovereign  is  not  to  expose  the  lives  of  his  soldiers 
for  the  safety  of  a  foreign  nation  with  which  he  has  not  con- 
tracted a  defensive  alliance.  It  may  be  his  own  case  to  stand 
in  need  of  assistance ;  and,  consequently,  he  is  acting  for  the 
safety  of  his  own  nation  in  giving  energy  to  the  spirit  and  dispo- 
[  136  ]  sition  to  afford  mutual  aid.  Accordingly,  policy  here  coincides 
with  and  enforces  obligation  and  duty.  It  is  the  interest  of 
princes  to  stop  the  progress  of  an  ambitious  monarch,  who 
aims  at  aggrandizing  himself  by  subjugating  his  neighbours. 


TOWARDS   OTHERS.  136 

A  powerful  league  was  formed  in  favour  of  the  United  Pro-    BOOK  n. 
vinces,  when  threatened  with  the  yoke  of  Louis  XIV.*    When    CHAP-  *• 
the  Turks  laid  siege  to  Vienna,  the  brave   Sobieski,  king  of 
Poland,  saved  the  house  of  Austria,  f  and  possibly  all  Ger- 
many, and  his  owp  kingdom. 

For  the  same  reason,  if  a  nation  is  afflicted  with  famine,  2  5.  it  ought 
all  those  who  have  provisions  to  spare  ought  to  relieve  her  to*^sist  a 
distress,  without,  however,  exposing  themselves  to  want.  (89)  ^^  ^[th 
But,  if  that  nation  is  able  to  pay  for  the  provisions  thus  fur-  famine  or 
nished,  it  is  perfectly  lawful  to  sell  them  to  her  at  a  reason-  any  other 
able  rate ;  for  they  are  not  bound  to  furnish  her  with  what  calamities. 
she  is  herself  capable  of  procuring ;  and,  consequently,  there 
is  no  obligation  of  gratuitously  bestowing  on  her  such  things 
as  she  is  able  to  purchase.     To  give  assistance  in  such  ex- 
treme necessity  is  so  essentially  conformable  to  humanity, 
that  the  duty  is  seldom  neglected  by  any  nation  that  has  re- 
ceived the  slightest  polish  of  civilization.     The  great  Henry 
the  Fourth  could  not  forbear  to  comply  with  it  in  favour  of 
obstinate  rebels  who  were  bent  on  his  destruction.  | 

Whatever  be  the  calamity  with  which  a  nation  is  afflicted, 
the  like  assistance  is  due  to  it.  We  have  seen  little  states  in 
Switzerland  order  public  collections  to  be  made  in  behalf  of 
towns  or  villages  of  the  neighbouring  countries,  which  had 
been  ruined  by  fire,  and  remit  them  liberal  succours ;  the  dif- 
ference of  religion  proving  no  bar  to  the  performance  of  so 
humane  a  deed.  The  calamities  of  Portugal  have  given  Eng- 
land an  opportunity  of  fulfilling  the  duties  of  humanity  with 
that  noble  generosity  which  characterizes  a  great  nation. 
On  the  first  intelligence  of  the  disastrous  fate  of  Lisbon,  §  the 
parliament  voted  a  hundred  thousand  pounds  sterling  for  the 
relief  of  an  unfortunate  people;  the  king  also  added  consi- 
derable sums :  ships,  laden  with  provisions  and  all  kinds  of 
succours,  were  sent  away  with  the  utmost  despatch ;  and  their 
arrival  convinced  the  Portuguese  that  an  opposition  in  belief 
and  worship  does  not  restrain  the  beneficence  of  those  who 
understand  the  claims  of  humanity.  On  the  same  occasion, 
likewise,  the  king  of  Spain  signally  displayed  his  tenderness 
for  a  near  ally,  and  exerted,  in  a  conspicuous  manner,  his 
humanity  and  generosity. 

A  nation  must  not  simply  confine  itself  to  the  preservation  f  6.  It  ought 
of  other  states  ;  it  should  likewise,  according  to  its  power  and106004"1"110 
their  want  of  its  assistance,  contribute  to  their  perfection.  J°  ^  p<?~ 

other  states. 

*  In  1672.  which  would  have  occasioned  more  de- 

f  He  defeated  the  Turks,  and  obliged    struction  than  the  most  disastrous  defeat 

them  to  raise   the   siege  of  Vienna,  in    in  battle,  England  supplied  them  with 

1683.  Peruvian  bark,  which  instantly  checked 

(89)  Ante,  Prelim.  $  14.     Upon  this    and  overcame  the  disease. — C. 
principle,    during    the    late   war   with         J  At  the  famous  siege  of  Paris. 
France,  when  the   French  troops  were        $  The    earthquake   by  which  a  great 
extensively   afflicted    with    a    disorder    part  of  that  city  was  destroyed. 

215 


136  COMMON   DUTIES   OF  A   NATION 

BOOK  n.    "We  have  already  shown  (Prelim.  §  13)  that  natural  society 
CHAP.  i.    jmpOSes  on  it  this  general  obligation.     We  are  now  come  to 


[  137  }  the  proper  place  for  treating  of  the  obligation  somewhat  more 
in  detail.  A  state  is  more  or  less  perfect,  as  it  is  more  or 
less  adapted  to  attain  the  end  of  civil  society,  which  consists 
in  procuring  for  its  members  every  thing  of  which  they  stand 
in  need,  for  the  necessities,  the  conveniences,  and  enjoyments 
of  life,  and  for  their  happiness  in  general, — in  providing  for 
the  peaceable  enjoyment  of  property,  and  the  safe  and  easy 
administration  of  justice, — and,  finally,  in  defending  itself 
against  all  foreign  violence  (Book  I.  §  15).  Every  nation 
therefore,  should  occasionally,  and  according  to  its  power, 
contribute,  not  only  to  put  another  nation  in  possession  of 
these  advantages,  but  likewise  to  render  it  capable  of  pro- 
curing them  itself.  Accordingly,  a  learned  nation,  if  applied 
to  for  masters  and  teachers  in  the  sciences,  by  another  nation 
desirous-  of  shaking  off  its  native  barbarism,  ought  not  to 
refuse  such  a  request.  A  nation,  whose  happiness  it  is  to 
live  under  wise  laws,  should,  on  occasion,  make  it  a  point 
of  duty  to  communicate  them.  Thus,  when  the  wise  and  vir- 
tuous Romans  sent  ambassadors  to  Greece  to  collect  good 
laws,  the  Greeks  were  far  from  rejecting  so  reasonable  and 
so  laudable  a  request.  (90) 

%  1.  But  not  But,  though  a  nation  be  obliged  to  promote,  as  far  as  lies 
by  force.  jn  jts  p0wer?  the  perfection  of  others,  it  is  not  entitled  forcibly 
to  obtrude  these  good  offices  on  them.  Such  an  attempt 
would  be  a  violation  of  their  natural  liberty.  In  order  to 
compel  any  one  to  receive  a  kindness,  we  must  have  an  autho- 
rity over  him ;  but  nations  are  absolutely  free  and  independ- 
ent (Prelim.  §  4).  Those  ambitious  Europeans  Avho  attacked 
the  American  nations,  and  subjected  them  to  their  greedy 
dominion,  in  order,  as  they  pretended,  to  civilize  them,  and 
cause  them  to  be  instructed  in  the  true  religion, — those 
usurpers,  I  say,  grounded  themselves  on  a  pretext  equally 
unjust  and  ridiculous.  It  is  strange  to  hear  the  learned  and 
judicious  Grotius  assert  that  a  sovereign  may  justly  take  up 
arms  to  chastise  nations  which  are  guilty  of  enormous  trans- 
gressions of  the  law  of  nature,  which  treat  their  parents  with 
inhumanity  like  the  Sogdians,  which  eat  human  flesh  as  the 
ancient  G-auls,  <f-<?.*(91)  What  led  him  into  this  error,  was, 

(90)  See  the  conduct  of  Charlemagne  but    otherwise    it    requires    prudential 

and    Alfred   the   Great.      Hume    Hist,  checks. — C. 

The  ancient  policy  was  to  withhold  any        *  Do  Jure  Belli  et  Pacis,  lib.  ii.  cap. 

communication  or   information   in  im-  xx.  $  11. 

proveinents  which  might  diminish  our        (91)  And   see  the  absurdity  of  such 

home  manufactures  ;  but  the  restrictions  interference  sarcastically  well  exempli- 

upon  the  exportations  of  artificers  and  fied  by  Cervantes  in  his  Don  Quixote, 

machinery  were  removed  by  5   Qeo.  4,  releasing  the  refractory  apprentice  and 

c.  97.     If  there   be   reciprocity  on  the  compelling   his   master  to  beg  pardon, 

part  of  the  other  nation,  the  indulgence  thereby  occasioning  the  former  an  in- 

of  this  liberal  policy  must  bo  desirable  j  finitely  more  severe  chastisement. — C. 
216 


TOWARDS   OTHERS.  137 

his  attributing  to  every  independent  man,  and  of  course  to  BOOK  "• 
every  sovereign,  an  odd  kind  of  right  to  punish  faults  which  — 
involve  an  enormous  violation  of  the  laws  of  nature,  though 
they  do  not  affect  either  his  rights  or  his  safety.  But  we 
have  shown  (Book  I.  §  169)  that  men  derive  the  right  of  pun- 
ishment solely  from  their  right  to  provide  for  their  own  safety; 
and  consequently  they  cannot  claim  it  except  against  those 
by  whom  they  have  been  injured.  Could  it  escape  Grotius, 
that,  notwithstanding  all  the  precautions  added  by  him  in 
the  following  paragraphs,  his  opinion  opens  a  door  to  all  the 
ravages  of  enthusiasm  and  fanaticism,  and  furnishes  ambition 
with  numberless  pretexts  ?  Mohammed  and  his  successors  have 
desolated  and  subdued  Asia,  to  avenge  the  indignity  done  to 
the  unity  of  the  Godhead ;  all  whom  they  termed  associators 
or  idolaters  fell  victims  to  their  devout  fury.  [  138  ] 

Since  nations  ought  to  perform  these  duties  or  offices  of  \  8.    The 
humanity  towards  each  other,  according  as  one  stands  in  need, nght  *° re' 
and  the  other  can  reasonably  comply  with  them, — every  nation  ^11^ 0{ 
being  free,  independent,  and  sole  arbitress  of  her  own  actions,  humanity, 
it  belongs  to  each  to  consider  whether  her  situation  warrants 
her  in  asking  or  granting  any  thing  on  this  head.     Thus, 
1.  Every  nation  has  a  perfect  right  to  ask  of  another  that 
assistance  and  those  kind  offices  which  she  conceives  herself 
to  stand  in  need  of.     To  prevent  her,  would  be  doing  her  an 
injury.     If  she  makes  the  application  without  necessity,  she 
is  guilty  of  a  breach  of  duty;  but,  in  this  respect,  she  is 
wholly  independent  of  the  judgment  of  others.    A  nation  has 
a  right  to  ask  for  these  kind  offices,  but  not  to  demand  them. 

For,  2.  These  offices  being  due  only  in  necessity,  and  by  a  $  9.    The 
nation  which  can  comply  with  them  without  being  wanting  to  "g^t  of 
itself ;  the  nation  that  is  applied  to  has,  on  the  other  hand,  a  Judsins 
right  of  judging  whether  the  case  really  demands  them,  andjj^yj^ 
whether  circumstances  will  allow  her  to  grant  them  consist-  be  granted, 
ently  with  that  regard  which  she  ought  to  pay  to  her  own 
safety  and  interests  :  for  instance,  a  nation  is  in  want  of  corn, 
and  applies  to  another  nation  to  sell  her  a  quantity  of  it : — 
in  this  case  it  rests  with  the  latter  party  to  judge  whether,  by 
a  compliance  with  the  request,  they  will  not  expose  themselves 
to  the  danger  of  a  scarcity :  and,  if  they  refuse  to  comply, 
their  determination  is  to  be  patiently  acquiesced  in.    We  have 
very  lately  seen  a  prudent  performance  of  this  duty  on  the 
part  of  Russia :  she  generously  assisted  Sweden  when  threaten- 
ed with  a  famine,  but  refused  to  other  powers  the  liberty  of 
purchasing  corn  in  Livonia,  from  the  circumstance  of  stand- 
ing herself  in  need  of  it,  and,  no  doubt,  from  weighty  political 
motives  likewise. 

Thus,  the  right  which  a  nation  has  to  the  offices  of  humanity  ? 10-  A  na- 
is  but  an  imperfect  one:  she  cannot  compel  another  nation  to tio^ is no* *° 
the  performance  of  them.  The  nation  that  unreasonably  otherVper- 
refuses  them  offends  against  equity,  which  consists  in  acting  form  those 

28  T  217 


138  COMMON    DUTIES    OF    A    NATION 


BOOK    II. 
CHAP.  -I. 


conformably  to  the  imperfect  right  of  another :  but  thereby 
no  injury  is  done  ;  injury  or  injustice  being  a  trespass  against 
the  perfect  right  of  another. 

It  is  impossible  that  nations  should  mutually  discharge  all 
wrong! "  D°  these  several  duties  .if  they  do  not  love  each  other.     This  is 
1 11.    Mu-  the  pure  source  from  which  the  offices  of  humanity  should 
tual  love  of  proceed ;  they  will  retain  the  character  and  perfection  of  it. 
nations.       Then  nations  will  be  seen  sincerely  and  cheerfully  to  help  each 
other,  earnestly  to  promote  tneir  common  welfare,  and  culti- 
vate peace,  without  jealousy  or  distrust. 

g  12.   Each      A  real  friendship  will  be  seen  to  reign  among  them ;  and 
nation         tnjs  happy  state  consists  in  a  mutual  affection.     Every  nation 
tivite  the"1  ig  obliged  to  cultivate  the  friendship  of  other  nations,  and 
friendship     carefully  to  avoid  Avhatever  might  kindle  their  enmity  against 
of  others,     her.     Wise  and  prudent  nations  often  pursue  this  line  of  con- 
duct from  views  of  direct  and  present  interest :  a  more  noble, 
[  139  ]  more  general,  and  less  direct  interest,  is  too  rarely  the  motive 
of  politicians.     If  it  be  incontestable  that  men  must  love  each 
other  in  order  to  answer  the  views  of  nature  and  discharge 
the  duties  which  she  prescribes  them,  as  well  as  for  their  own 
private  advantage, — can  it  be  doubted  that  nations  are  under 
the  like  reciprocal  obligation  ?     Is  it  in  the  power  of  men,  on 
dividing  themselves  into  different  political  bodies,  to  break 
the  ties  of  that  universal  society  which  nature  has  established 
amongst  them  ? 

g  13.    To         If  a  man  ought  to  qualify  himself  for  becoming  useful  to 

perfect  itself  other  men, — and  a  citizen,  for  rendering  useful  services  to  his 

with  a  view  COUntry  and  fellow  citizens, — a  nation  likewise,  in  perfecting 

vanta  e  of    herself,  ought  to  have  in  view  the  acquisition  of  a  greater 

others,  and   degree  of  ability  to  promote  the  perfection  and  happiness  of 

set  them      other  nations ;  she  should  be  careful  to  set  them  good  examples, 

good  exam-  an(j  avoid  setting  them  a  pattern  of  any  thing  evil.     Imitation 

is  natural  to  mankind :  the  virtues  of  a  celebrated  nation  are 

sometimes  imitated,  and  much  more  frequently  its  vices  and 

defects. 

g  14.    To         Glory  being  a  possession  of  great  importance  to  a  nation, 

take  care  of  as  we  have  shown  in  a  particular  chapter  expressly  devoted 

their  glory.  f.Q  ^e  subject;5* — the  duty  of  a  nation  extends  even  to  the 

care  of  the  glory  of  other  nations.     In  the  first  place,  she 

should,  on  occasion,  contribute  to  enable  them  to  merit  true 

glory :  secondly,  she  should  do  them  in  this  respect  all  the 

justice  due  to  them,  and  use  all  proper  endeavours  that  such 

justice  be  universally  done  them :  finally,  instead  of  irritating, 

she  should  kindly  extenuate  the  bad  effect  which  some  slight 

blemishes  may  produce. 

g  15.  Dif-  From  the  manner  in  which  we  have  established  the  obliga- 
ference  of  ^{on  Of  performing  the  offices  of  humanity,  it  plainly  appears 
religion  ^Q  ^  goieiy  founded  on  the  nature  of  man.  Wherefore,  no 

*  Book  I.  chap.  XT. 
218 


TOWARDS   OTHERS. 


nation  can  refuse  them  to  another,  under  pretence  of  its  pro-    BOOK  n 
fessing  a  different  religion :  to  be  entitled  to  them,  it  is  suffi- 


CHAP.    I. 


cient  that  the  claimant  is  our  fellow-creature.  A  conformity  ought  not  to 
of  belief  and  worship  may  become  a  new  tie  of  friendship  Preclude  the 
between  nations  :  but  no  difference  in  these  respects  can  war-  humanity 
rant  us  in  laying  aside  the  character  of  men,  or  the  sentiments 
annexed  to  it.  As  AVC  have  already  related  (§  5)  some  instances 
well  worthy  of  imitation,  let  us  here  do  justice  to  the  pontiff 
who  at  present  fills  the  see  of  Rome,  and  has  recently  given 
a  very  remarkable  example,  and  which  cannot  be  too  highly 
commended.  Information  being  given  to  that  prince,  that 
several  Dutch  ships  remained  at  Civita  Vecchia,  not  daring  to 
put  to  sea  for  fear  of  the  Algerine  corsairs,  he  immediately 
issued  orders  that  the  frigates  of  the  ecclesiastical  state  should 
convoy  those^hips  out  of  danger ;  and  his  nuncio  at  Brussels 
received  instructions  to  signify  to  the  ministers  of  the  states- 
general,  that  his  holiness  made  it  a  rule  to  protect  commerce 
and  perform  the  duties  of  humanity,  without  regarding  any 
difference  of  religion.  Such  exalted  sentiments  cannot  fail 
of  raising  a  veneration  for  Benedict  XIV.  even  amongst  Pro- 
testants. (92)  [  140  ] 
How  happy  would  mankind  be,  were  these  amiable  precepts  1 16.  Rule 
of  nature  everywhere  observed !  Nations  would  communicate  and  measure 
to  each  other  their  products  and  their  knowledge ;  a  profound 
peace  would  prevail  all  over  the  earth,  and  enrich  it  with  its 
invaluable  fruits ;  industry,  the  sciences,  and  the  arts  would 
be  employed  in  promoting  our  happiness,  no  less  than  in  re- 
lieving our  wants ;  violent  methods  of  deciding  contests  would 
be  no  more  heard  of;  all  differences  would  be  terminated  by 
moderation,  justice,  and  equity;  the  world  would  have  the 
appearance  of  a  large  republic ;  men  would  live  everywhere 
like  brothers,  and  each  individual  be  a  citizen  of  the  universe. 
That  this  idea  should  be  but  a  delightful  dream !  yet  it  flows 
from  the  nature  and  essence  of  man.*  But  disorderly  pas- 
sions, and  private  and  mistaken  interest,  will  for  ever  prevent 
its  being  realized.  Let  us,  then,  consider  what  limitations 

(92)  He   was    much    celebrated  and  man,— it  necessarily  follows,  that,  ac- 

spoken   of  in  Lord   Charlemont's  Tra-  cording  to  the  intentions  of  nature,  all 

vels  in  A.  D.  1742. — C.  mankind   must    have  one  common  in- 

*  Here,  again,  let  us  call  in  the  terest — Ergo  unum  debet  esse  omni- 
authority  of  Cicero  to  our  support,  bus  propositum,  ut  eadem  sit  utilitas 
"  All  mankind  (says  that  excellent  uniuscujusque  et  universorum :  quam 
philosopher)  should  lay  it  down  as  si  ad  se  quisque  rapiat,  dissolvetur 
their  constant  rule  of  action,  that  in-  omnis  humana  consociatio.  Atque  si 
dividual  and  general  advantage  should  etiam  hoc  natura  prsescribit,  ut  homo 
be  the  same :  for,  if  each  man  strives  to  homini,  quicunque  sit,  ob  earn  ipsam 
grasp  every  advantage  for  himself,  all  causani,  quod  is  homo  sit,  consultum 
the  ties  of  human  society  will  be  velit,  necesse  est,  secundum  eandem 
broken.  And,  if  nature  ordains  that  naturam,  omnium  utilitatem  esse  corn- 
man  should  feel  interested  in  the  wel-  munem.  De  Offic.  lib.  iii.  cap.  iv.  Note 
fare  of  his  fellow-man,  whoever  he  be,  ED.  1797. 
and  for  the  single  reason  that  he  is  a 

219 


140  COMMON  DUTIES   OF  A   NATION 

BOOK  n.    the  present  state  of  men,  and  the  ordinary  maxims  and  con- 
CHAP- *•    duct  of  nations,  may  render  necessary  in  the  practice  of 
these  precepts  of  nature,  which  are  in  themselves  so  noble 
and  excellent. 

The  law  of  nature  cannot  condemn  the  good  to  become  the 
dupes  and  prey  of  the  wicked,  and  the  victims  of  their  injus- 
tice and  ingratitude.  Melancholy  experience  shows  that  most 
nations  aim  only  to  strengthen  and  enrich  themselves  at  the 
expense  of  others, — to  domineer  over  them,  and  even,  if  an 
opportunity  offers,  to  oppress  and  bring  them  under  the  yoke. 
Prudence  does  not  allow  us  to  strengthen  an  enemy,  (93)  or 
one  in  whom  we  discover  a  desire  of  plundering  and  oppress- 
ing us  :  and  the  care  of  our  own  safety  forbids  it.  We  have 
seen(§  3,  &c.)  that  a  nation  does  not  owe  her  assistance  and 
the  offices  of  humanity  to  other  nations,  except  so  far  as  the 
grant  of  them  is  reconcilable  with  her  duties  to  herself. 
Hence,  it  evidently  follows,  that,  though  the  universal  love  of 
mankind  obliges  us  to  grant  at  all  times,  and  to  all,  even  to 
our  enemies,  those  offices  which  can  only  tend  to  render  them 
more  moderate  and  virtuous,  because  no  inconvenience  is  to 
be  apprehended  from  granting  them, — we  are  not  obliged  to 
give  them  such  succours  as  probably  may  become  destructive 
to  ourselves.  Thus,  1.  The  exceeding  importance  of  trade, 
not  only  to  the  wants  and  conveniences  of  life,  but  likewise 
to  the  strength  of  a  state,  and  furnishing  it  with  the  means 
of  defending  itself  against  its  enemies, — and  the  insatiable 
[  141  ]  avidity  of  those  nations  which  seek  wholly  and  exclusively  to 
engross  it, — thus,  I  say,  these  circumstances  authorize  a  na- 
tion possessed  of  a  branch  of  trade,  or  the  secret  of  some 
important  manufacture  or  fabric,  to  reserve  to  herself  those 
sources  of  wealth,  and,  instead  of  communicating  them  to 
foreign  nations,  to  take  measures  against  it.  But,  where  the 
necessaries  or  conveniences  of  life  are  in  question,  the  nation 
ought  to  sell  them  to  others  at  a  reasonable  price,  and  not 
convert  her  monopoly  into  a  system  of  odious  extortion.  To 
commerce  England  chiefly  owes  her  greatness,  her  power,  and 
her  safety :  who,  then,  will  presume  to  blame  her  for  endea- 
vouring, by  every  fair  and  just  method,  to  retain  the  several 
branches  of  it  in  her  own  hand  ? 

2.  As  to  things  directly  and  more  particularly  useful  for 
war,  a  nation  is  under  no  obligation  to  sell  them  to  others  of 
whom  it  has  the  smallest  suspicion ;  and  prudence  even  de- 
clares against  it.  Thus,  by  the  Roman  laws,  people  were 
very  justly  prohibited  to  instruct  the  barbarous  nations  in 
building  galleys.  Thus,  in  England,  laws  have  been  enacted 


(93)   The  same   prudential   consider-  granted  without   equivalent  to  another 

ation   extends   also   in  time  of  peace,-  state,  she  may  declare  war  against  tho 

for,  who  can  anticipate  how  soon  after  nation  who  conferred  them  ? — C. 
advantages    have    been    conferred    or 
220 


TOWARDS   OTHERS.  141 

to  prevent  the  best  method  of  ship-building  from  being  carried    BOOK  u. 
out  of  the  kingdom.  CHAP'  '• 

This  caution  is  to  be  carried  farther,  with  respect  to  na- 
tions more  justly  suspected.  Thus,  when  the  Turks  were 
successfully  pursuing  their  victorious  career,  and  rapidly  ad- 
vancing to  the  zenith  of  power,  all  Christian  nations  ought, 
independent  of  every  bigoted  consideration,  to  have  consi- 
dered them  as  enemies ;  even  the  most  distant  of  those  na- 
tions, though  not  engaged  in  any  contest  with  them,  would 
have  been  justifiable  in  breaking  off  all  commerce  with  a  peo- 
ple who  made  it  their  profession  to  subdue  by  force  of  arms 
all  who  would  not  acknowledge  the  authority  of  their  prophet. 

Let  us  further  observe,  with  regard  to  the  prince  in  par-  g  ir.  Parti- 
ticular,  that  he  ought  not,  in  affairs  of  this  nature,  to  obey  cuiar  limita- 
without  reserve  all  the  suggestions  of  a  noble  and  generous tlon  Wlth 
heart  impelling  him  to  sacrifice  his  own  interests  to  the  ad-^f^u^ 
vantage  of  others,  or  to  motives  of  generosity ;  because  it  is 
not  his  private  interest  that  is  in  question,  but  that  of  the 
state — that  of  the  nation  who  has  committed  herself  to  his 
care.     Cicero  says  that  a  great  and  elevated  soul  despises 
pleasures,  wealth,  life  itself,  and  makes  no  account  of  them, 
when  the   common  utility  lies  at  stake.*     He  is  right,  and 
such  sentiments  are  to  be  admired  in  a  private  person  ;  but 
generosity  is  not  to  be  exerted  at  the  expense  of  others. 
The  head  or  conductor  of  a  nation  ought  not  to  practise  that 
virtue  in  public  affairs  without  great  circumspection,  nor  to  a 
greater  extent  than  will  redound  to  the  glory  and  real  advan- 
tage of  the  state.     As  to  the  common  good  of  human  society, 
he  ought  to  pay  the  same  attention  to  it  as  the  nation  he  re- 
presents would  be  obliged  to  pay  were  the  government  of  her 
affairs  in  her  own  hand. 

But,   though  the  duties  of  a  nation  towards  herself  set  §  is.   No 
bounds  to  the  obligation  of  performing  the  offices  of  human- nation 
ity,  they  cannot  in  the  least  affect  the  prohibition  of  doing  °usht  to  in* 
any  harm  to  others,  of  causing  them  any  prejudice, — in  ajure 

word,  of  injuring  them  f If  every  [  142  ] 

man  is,  by  his  very  nature,  obliged  to  assist  in  promoting  the 
perfection  of  others,  much  more  cogent  are  the  reasons  which 
forbid  him  to  increase  their  imperfection,  and  that  of  their 
condition.  The  same  duties  are  incumbent  on  nations  (Pre-  ,. 

lim.  §§5,  6).  No  nation,  therefore,  ought  to  commit  any 
actions  tending  to  impair  the  perfection  of  other  nations,  and 
that  of  their  condition,  or  to  impede  their  progress, — in  other 

*  De  Offic.  lib.  iii.  cap.  v.  prejudice     (to    prejudice),     Hester    (to 

f  Lezer  (professedly  borrowed  from  wound,  or  hurt),  are  not  of  precisely  the 

the   Latin  Icedo)  is  the  term  used  by  same   import,"   and   that,  by  the  word 

the  author,  who,  in  order  the  better  to  lexer  (which  is  hete  rendered  injure)  he 

explain   his   meaning,  proceeds  to  in-  means,  "  in  general,  causing  imperfection 

form  us,  that  "nuire  (to  hurt),  offenser  in  the  injured  party,  or  in  his  condition 

(to  offend),  faire  tort  (to  wrong),  porter  — rendering  his  person  or  his  condition 

dommage   (to   cause   detriment),  porter  less  perfect." 

T2  221 


142  COMMON  DUTIES    OF   A   NATION 

BOOK  n.  words,  to  injure  them.  (94)  And,  since  the  perfection  of  a 
_CHAP-  *•  nation  consists  in  her  aptitude  to  attain  the  end  of  civil  so- 
ciety— and  the  perfection  of  her  condition,  in  not  wanting 
any  of  the  things  necessary  to  that  end  (Book  I.  §  14) — no 
one  nation  ought  to  hinder  another  from  attaining  the  end  of 
civil  society,  or  to  render  her  incapable  of  attaining  it.  This 
general  principle  forbids  nations  to  practise  any  evil  manoeu- 
vres tending  to  create  disturbdnce  in  another  state,  to  foment 
discord,  to  corrupt  its  citizens,  to  alienate  its  allies,  to  raise 
enemies  against  it,  to  tarnish  its  glory,  and  to  deprive  it  of 
its  natural  advantages.  (95) 

However,  it  will  be  easily  conceived  that  negligence  in  ful- 
filling the  common  duties  of  humanity,  and  even  the  refusal 
of  these  duties  or  offices,  is  not  an  injury.  To  neglect  or  re- 
fuse contributing  to  the  perfection  of  a  nation,  is  not  impair- 
ing that  perfection. 

It  must  be  further  observed,  that,  when  we  are"  making  use 
of  our  right,  when  we  are  doing  what  we  owe  to  ourselves  or 
to  others,  if,  from  this  action  of  ours,  any  prejudice  results 
to  the  perfection  of  another, — any  detriment  to  his  exterior 


(94)  This  position,  however,  requires 
qualification;  for,  whether  in   time  of 
peace  or  of  war,  a  nation  has  a  right 
to  diminish  the  commerce  or  resources 
of  another  by  fair   rivalry   and   other 
means  not  in  themselves  unjust,  precisely 
as  one  tradesman  may  by  fair  compe- 
tition   undersell    his     neighbour,    and 
thereby  alienate  his  customers. — C. 

(95)  An   instance  of  this  rule  is,  the 
illegality  of  any  commercial  intercourse 
with  a  revolted  colony  before  its  sepa- 
rate independence    has   been   acknow- 
ledged.    A   contract  made   between  a 
revolted  colony  in  that  character  with 
the   subject   of  another  state  that  has 
not  as  yet  recognised  such  revolted  co- 
lony as  an  independent  state,  is  illegal 
and  void,  and  will   not  be  given  effect 
to  by  the    Court  of   Chancery,  or  any 
other  court  in  this   country.      City  of 
Berne  v.  Bank  of  England,  9  Ves.  347 ; 
Jones  v.   Garcia   del   Rio,  1    Turner  & 
Buss.  297 ;   Thompson  v.  Powles,  2  Sim. 
Rep.   202,   3;    De   Wutz   v.  Hend ricks, 

2  Bing.     314;     Yrisarri    v.     Clement, 
11    Moore,    308;    2    Car.    &    P.   223; 

3  Bing.  432;  for,  such  direct  recogni- 
tion  of  such   a    revolted  colony  must 
necessarily  be  offensive   to  the  princi- 
pal state  to  which  it  belonged;  and,  in 
the   American  war,  Great  Britain   de- 
clared  war  against  France   and   other 
countries   on  the  ground  of  their  im- 
proper  interference   between    her   and 
her  colonies,  Thompson  v.  Powlet,  2  Sim. 

222 


Rep.  203,  212,  3,  and  in  Bire  v.  Thomp- 
son, cited  id.  and  id.  222,  Lord  Eldon 
refused  to  take  notice  of  the  Republic 
of  Colombia:  and  it  seems  that,  if  a 
bill  in  equity  falsely  state  that  the  co- 
lony had  been  recognised  as  an  inde- 
pendent state,  the  court  may  take  ju- 
dicial notice  of  the  contrary,  and  decree 
or  proceed  accordingly ;  and  the  mere 
fact  of  this  country  having  for  com- 
mercial purposes  sent  a  consul  to  a  re- 
volted colony,  is  not  equivalent  to  a 
state  recognition  of  its  independence; 
Taylor  v.  Barclay,  2  Sim.  213,  and 
Yrisarri  v.  Clement,  11  Moore,  308 ;  2 
Carr.  &  P.  223;  3  Bing.  432,  cited  "id. 
219 ;  {  The  United  States  v.  Palmer,  3 
Wheat.  Rep.  610.  { 

To  supply  such  a  revolted  colony 
(or  even  any  independent  state)  with 
money,  without  leave  of  the  govern- 
ment to  which  a  subject  belongs,  is  il- 
legal, because  that  would  be  assisting 
such  colony  against  the  parent  country 
to  which  it  belongs ;  and  also  because 
it  would  create  objects  and  interests  on 
the  part  of  the  subject  that  might  in 
case  of  war  be  injurious  to  his  own  go- 
vernment. Observations  in  Thompson 
v.  Powles,  2  Sim.  Rep.  203,  and  Hen- 
nings  v.  Rothschild,  12  Moore,  559;  4 
Bing.  315,  335;  9  Bar.  &  Cres.  470; 
Yri»arri  v.  Clement,  11  Moore,  308;  2 
Car.  &  P.  223;  3  Bing.  432.  {See 
The  Santissima  Trinidada,  7  Wheat. 
Rep.  283.} 


TOWARDS    OTHERS. 


142 


condition, — we  are  not  guilty  of  an  injury:  we  are  doing    BOOK  n. 
what  is  lawful,  or  even  what  we  ought  to  do.     The  damage    CHAP'  *' 
which  accrues  to  the  other  is  no  part  of  our  intention :  it  is 
merely  an  accident,  the  imputability  of  which  must  be  deter- 
mined by  the  particular  circumstances.     For  instance,  in  case 
of  a  lawful  defence,  the  harm  we  do  to  the  aggressor  is  not 
the  object  we  aim  at : — we  act  only  with  a  view  to  our  own 
safety ;  we  make  use  of  our  right ;  and  the  aggressor  alone  is 
chargeable  with  the  mischief  which  he  brings  on  himself. 

Nothing  is  more  opposite  to  the  duties  of  humanity,  nor  §  19.    of- 
more  contrary  to  that  society  which  should  be  cultivated  by fences- 
nations,  than  offences,  or  actions  which  give  a  just  displeasure 
to  others :  every  nation  therefore  should  carefully  avoid  giving 
any  other  nation  real  offence:  I  say  real;  for,  should  others 
take  offence  at  our  behaviour  when  we  are  only  using  our 
rights  or  fulfilling  our  duties,  the  fault  lies  with  them,  not  with 
us.    Offences  excite  such  asperity  and  rancour  between  nations 
that  we  should  avoid  giving  any  room  even  for  ill-grounded  [  143  j 
piques,  when  it  can  be  done  without  any  inconveniency,  or 
failure  in  our  duty.     It  is  said  that  certain  medals  and  dull 
jests  irritated  Louis  XIV.  against  the  United  Provinces  to 
such  a  degree  as  to  induce  him,  in  1672,  to  undertake  the  de- 
struction of  that  republic.  (96) 

The  maxims  laid  down  in  this  chapter, — those  sacred  pre-§20.   Bai 
cepts  of  nature, — were  for  a  long  time  unknown  to  nations,  custom  of 
The  ancients  had  no  notion  of  any  duty  they  owed  to  nations the  ancients- 
with  whom  they  were  not  united  by  treaties  of  friendship.* 
The  Jews  especially  placed  a  great  part  of  their  zeal  in  hating 
all  nations ;  and,  as  a  natural  consequence,  they  were  detested 
and  despised  by  them  in  turn.    At  length  the  voice  of  nature 
came  to  be  heard  among  civilized  nations ;  they  perceived  that 
all  men  are  brethren.f     When  will  the  happy  time  come  that 
they  shall  behave  as  such  ? 


(96)  On  this  ground  it  was  held  that 
the  publication  in  England  of  a  libel 
upon  Bonaparte,  then  first  consul  of 
the  French  republic,  was  an  indictable 
offence,  as  calculated  to  stir  up  ani- 
mosity between  him  and  the  citizens 
of  the  republic,  and  to  create  discord 
between  our  king  and  people  and  said 
Bonaparte  and  said  republic.  Infor- 
mation against  Peltier  filed  in  Crown 
Office,  K.  B.,  in  Michaelmas  Term, 
43  Geo.  3—1  Camp.  352.  {Adam's 
Rep.  of  Peltier's  Trial,  Lond.  1803. }  So 
Lord  Hawkesbury  laid  it  down  to  be 
clear  "  that  a  foreign  power  has  a  right 
to  apply  to  foreign  courts  of  judicature 
and  obtain  redress  for  defamation  or 
calumny,"  6  Russell's  Modern  Europe, 


20,  and  see  post,  page  173,  end  of  note ; 
and  see  1  Chit.  Commercial  L.  74. — C. 

*  To  the  example  of  the  Romans 
may  be  added  that  of  the  English  in 
former  days, — since,  on  the  occasion 
of  a  navigator  being  accused  of  having 
committed  some  depredations  on  the 
natives  of  India,  "  this  act  of  injustice" 
(according  to  Grotius)  "was  not  with- 
out advocates  who  maintained,  that, 
by  the  ancient  laws  of  England,  crimes 
committed  against  foreign  nations  with 
whom  there  existed  no  public  treaty 
of  alliance,  were  not  punishable  in  that 
kingdom." — History  of  the  Disturbances 
in  the  Low  Countries,  book  xvi. 

f  See  §  1,  a  fine  passage  of  Cicero. 


143  MUTUAL   COMMERCE   OF   NATIONS. 


BOOK   II. 
CHAP.   II. 


CHAP.  II. 

OF  THE  MUTUAL   COMMERCE  BETWEEN  NATIONS. 

^lo\>ifT°  ALL  men  ought  to  find  on  earth  the  things  they  stand  in 
tfonofTa"-  need  of.  In  the  primitive  state  of  communion,  they  took  them 
tions  to  car-  wherever  they  happened  to  meet  with  them,  if  another  had 
ry  on  mu-  not  before  appropriated  them  to  his  own  use.  The  introduc- 
merce°m  ^on  °^  Dominion  an(^  property  could  not  deprive  men  of  so 
essential  a  right;  and,  consequently,  it  cannot  take  place 
without  leaving  them,  in  general,  some  mean  of  procuring 
what  is  useful  or  necessary  to  them.  This  mean  is  commerce  ; 
by  it  every  man  may  still  supply  his  wants.  Things  being 
now  become  property,  there  is  no  obtaining  them  without  the 
owner's  consent,  nor  are  they  usually  to  be  had  for  nothing  ; 
but  they  may  be  bought,  or  exchanged  for  other  things  of 
equal  value.  Men  are,  therefore,  under  an  obligation  to  carry 
on  that  commerce  with  each  other,  if  they  wish  not  to  deviate 
from  the  vieius  of  nature  ;  and  this  obligation  extends  also  to 
whole  nations  or  states  (Prelim.  §  5).  It  is  seldom  that  nature 
is  seen  in  one  place  to  produce  every  thing  necessary  for  the 
use  of  man  ;  one  country  abounds  in  corn,  another  in  pastures 
and  cattle,  a  third  in  timber  and  metals,  &c.  If  all  those 
countries  trade  together,  as  is  agreeable  to  human  nature,  no 
[  144  ]  one  of  them  will  be  without  such  things  as  are  useful  and 
necessary  ;  and  the  views  of  nature,  our  common  mother,  will 
be  fulfilled.  Further,  one  country  is  fitter  for  some  kind  of 
products  than  another,  as,  for  instance,  fitter  for  the  vine  than 
for  tillage.  If  trade  and  barter  take  place,  every  nation,  on 
the  certainty  of  procuring  what  it  wants,  will  employ  its  land 
and  its  industry  in  the  most  advantageous  manner,  and  man- 
kind in  general  prove  gainers  by  it.  Such  are  the  foundations 
of  the  general  obligation  incumbent  on  nations  reciprocally  to 
cultivate  commerce.  (97) 


(97)  The  restrictions  on  trade,  which  freedom  being  very  favourable  to  corn- 

have  been  enforced  absolutely  or  con-  merce,  it  is  implied  in  the  duties  of  na- 

ditionally,  by  almost  all  the  powerful  tions  that  they  should  support  it  as  far 

nations  of  the  world,  have  been  the  as  possible,  instead  of  cramping  it  by 

cause  of  a  thousand  wars,  and  the  unnecessary  burdens  or  restrictions; 

ground-work  of  innumerable  treaties;  and  this  position  is  supported  by  the 

and,  therefore,  it  is  important  that  we  reasons  thus  urged  by  Vattel  (supra, 

should  give  them  full  consideration.  g  21). 

With  respect  to  the  freedom  of  trade,  It  was  this  feeling  that  influenced 

it  has  been  laid  down  by  the  wisest  of  that  celebrated  statesman,  Mr.  Pitt,  in 

politicians  and  best  of  men,  that  every  concluding  the  commercial  treaty  with 

nation  ought  not  only  to  countenance  France,  in  1786.  Great  Britain  and 

trade  as  far  as  it  reasonably  can,  but  France  had,  for  centuries  before,  con- 

even  to  protect  and  favour  it;  and  that,  trary  to  every  sound  principle  of  policy, 
224 


MUTUAL   COMMERCE    OF   NATIONS. 


144 


Every  nation  ought,   therefore,  not  only  to  countenance    BOOKII. 
trade,  as  far  as  it  reasonably  can,  but  even  to  protect  and  fa-    CHAP-  "• 
vour  it.     The  care  of  the  public  roads,  the  safety  of  travel-  §  22.  They 
lers,  the  establishment  of  ports,  of  places  of  sale,  of  well-  should  fa- 
regulated  fairs,  all  contribute  to  this  end.     And,  where  these  vour  tra(le' 
are  attended  with  expense,  the  nation,  as  we  have  already  ob- 
served (Book  I.  §  103),  may,  by  tolls  and  other  duties  equita- 
bly proportioned,  indemnify  itself  for  its  disbursements. 

Freedom  being  very  favourable  to  commerce,  it  is  implied,  §  23.  Free- 
in  the  duties  of  nations,  that  they  should  support  it  as  far  as  dom  of 
possible,  instead  of  cramping  it  by  unnecessary  burdens  or 
restrictions.     Wherefore,  those  private  privileges  and  tolls, 
which  obtain  in  many  places,  and  press  so  heavily  on  corn- 


acted  as  rival  enemies,*  and  their  com- 
mercial policy  was  dictated  by  the 
same  spirit  which  prompted  their  un- 
happy wars;  insomuch,  that,  though 
they  possessed  the  materials  of  a  most 
extensive  commerce — the  one  abound- 
ing in  all  that  art  and  industry  can 
supply,  and  the  other  in  productions 
of  a  more  favoured  soil  and  climate — 
the  exchange  of  their  peculiar  produce 
was  discouraged  bjr  a  complicated  sys- 
tem of  restraint  and  heavy  duties.f 
The  object  of  the  commercial  treaty 
alluded  to  was,  to  abolish  those  per- 
nicious restraints,  and,  by  connecting 
the  two  countries  in  the  bonds  of  a 
reciprocal  trade,  to  pledge  them,  by 
their  mutual  interest,  to  an  oblivion 
of  their  ancient  animosities.  The  view 
in  which  that  treaty  originated  was  ex- 
plained by  Mr.  Pitt,  when  it  was  sub- 
mitted to  Parliament;  and  the  senti- 
ments which  he  expressed  gave  to  this 
measure  a  remarkable  character  of 
moderation  and  wisdom.  In  reply  to  an 
argument  inculcating  constant  jealousy 
of  France,^  he  inquired,  "  whether,  in 
using  the  word  jealousy,  it  was  meant 
to  recommend  to  this  country  such  a 
species  of  jealousy  as  should  be  either 
mad  or  blind,  such  a  species  of  jealousy 
as  should  induce  her  either  madly  to 
throw  away  what  was  to  make  her 
happy,  or  blindly  grasp  at  that  which 
must  end  in  her  rum  1  Was  the  ne- 
cessity of  a  perpetual  animosity  with 
France  so  evident  and  so  pressing  that 
for  it  we  were  to  sacrifice  every  com- 


mercial advantage  we  might  expect 
from  a  friendly  intercourse  with  that 
country  1  or,  was  a  pacific  connection 
between  the  two  kingdoms  so  highly 
offensive  that  even  an  extension  of  com- 
merce could  not  counterpoise  it  1"  To- 
wards the  close  of  the  same  speech,  he 
observes,  "  The  quarrels  between 
France  and  Britain  had  too  long  oon- 
tinued  to  harass  not  only  those  two 
great  nations  themselves,  but  had  fre- 
quently embroiled  the  peace  of  Europe ; 
nay,  had  disturbed  the  tranquillity  of 
the  most  remote  parts  of  the  world. 
They  had,  by  their  past  conduct,  acted 
as  if  they  were  intended  for  the  de- 
struction of  each  other ;  but  he  hoped 
the  time  was  now  come  when  they 
should  justify  the  order  of  the  universe, 
and  show  that  they  were  better  calcu- 
lated for  the  more  amiable  purposes 
of  friendly  intercourse  and  mutual  bene- 
volence." "Considering  the  treaty," 
he  continued,  "  in  a  political  view,  he 
should  not  hesitate  to  contend  against 
the  too  frequently  advanced  doctrine, 
that  France  was  and  must  be  the  un- 
alterable enemy  of  Britain ;  his  mind 
revolted  from  this  position  as  monstrous 
and  impossible.  To  suppose  that  any 
nation  was  unalterably  the  enemy  of 
another,  was  weak  and  childish:  it 
had  neither  its  foundation  in  the  expe- 
rience of  nations  nor  in  the  history  of 
man.  It  was  a  libel  on  the  constitution 
of  political  societies,  and  supposed  diabo- 
lical malice  in  the  original  frame  of 
man." — C. 


*  2  Smith's  Wealth  of  Nations,  pp.  226-7,  252-3 ;  Tucker's  Pamphlet,  Cm 
Bono. 

f  See  Smith's  Wealth  of  Nations,  vol.  4,  169, per  Buchanan;  and  see  An- 
derson's Hist.  Com.  vol.  4,  pp.  634  to  639. 

*9  225 


144  MUTUAL   COMMERCE    OF   NATIONS. 

BOOK  ii.    merce,  are  deservedly  to  be  reprobated,  unless  founded  on 
CHAP,  ii.    very  important  reasons  arising  from  the  public  good. 
§24.  Right      Every  nation,  in  virtue  of  her  natural  liberty,  has  a  right 
of  trading,   to  trade  with  those  who  are  willing  to  correspond  with  such 
belonging  to  •ntentjong .  an(j  to  moies^  her  in  ^he  exercise  of  her  right 
is  doing  her  an  injury.  (98)     The  Portuguese,  at  the  time  of 
their  great  power  in  the  East  Indies,  were  for  excluding  all 
other  European  nations  front  any  commerce   with  the  In- 
dians ;  but  such  a  pretension,  no  less  iniquitous  than  chime- 
rical,  was  treated  with   contempt ;    and  the   other  nations 
agreed  to  consider  any  acts  of  violence  in  support  of  it,  as 
just  grounds  for  making  war  against  the  Portuguese.     ^Chis 
common  right  of  all  nations  is,  at  present,  generally  acknow- 
ledged under  the  appellation  of  freedom  of  trade. 

§25.  Each       But,  although  it  be  in  general  the  duty  of  a  nation  to 
nation  is      carry  on  commerce  Avith  others,  and,  though  each  nation  has 

sole  judge    &  right  to  trade  with  those  countries  that  are  willing  to  en- 
of  the  pro-  .  .  ,        ,        ,  .  ,  p    , . 

priety  of      courage  her — on  the  other  hand,  a  nation  ought  to  decline  a 

commerce    commerce  which  is  disadvantageous  or  dangerous  (Book  I. 

on  her  own  §  98) ;  and  since,  in  case  of  collision,  her  duties  to  herself  are 

part.(99)  paramount  to  her  duties  to  others,  she  has  a  full  and  clear 
right  to  regulate  her  conduct,  in  this  respect,  by  the  consi- 
deration of  what  her  advantage  or  safety  requires.  We  have 
already  seen  (Book  I.  §  92),  that  each  nation  is,  on  her  own 
part,  the  sole  judge  whether  or  not  it  be  convenient  for  her  to 
cultivate  such  or  such  branch  of  commerce.  She  may,  there- 
fore, either  embrace  or  reject  any  commercial  proposals  from 
foreign  nations,  without  affording  them  any  just  grounds  to 
accuse  her  of  injustice,  or  to  demand  a  reason  for  such  re- 
fusal, much  less  to  make  use  of  compulsion.  She  is  free  in 
[  145  ]  the  administration  of  her  affairs,  without  being  accountable 
to  any  other.  The  obligation  of  trading  with  other  nations  is 
in  itself  an  imperfect  obligation  (Prelim.  §  17),  and  gives 
them  only  an  imperfect  right ;  so  that,  in  cases  where  the 
commerce  would  be  detrimental,  that  obligation  is  entirely 
void.  When  the  Spaniards  attacked  the  Americans,  under  a 
pretence  that  those  people  refused  to  traffic  with  them,  they 
only  endeavoured  to  throw  a  colourable  veil  over  their  own 
insatiable  avarice. 

§  26.  Ne-        These  few  remarks,  together  with  what  we  have  already 

cessity  of      __ 

commercial       ^  Jt  ig  &  general  ^  of  the  law  positioni     It  there  seems  that  an  ex_ 

of  nations,  that,  in  time  of  peace,  no  elusive   trade   may  be   acquired  by  a 

nation  is  entitled  to  limit  or  impose  treaty  with  the  nations  of  India  who 

regulations  upon  the  commerce  which  have  not  before  entered  into  a  rcstrio 

any  other  independent  state  may  think  tive  treaty.     See  also  1  Chit.  Com.  L. 

fit  to  carry  on,  either  externally,  with  76. — C. 

the  natives  of  other  independent  states,         (99)  See  further,  1  Chit.  Com.  L. 

or  internally,  amongst  its  own  subjects.  80,  n.  2  ;  Grotius,  158  ;  Puff.  b.  4,  c.  6, 

Puffend.  b.  4,  c.  5,  s.  10,  p.  168  ;  Mar-  s.  10,  p.  168. 

ten's  L.  N.  152-3 ;  where  sec  the  dif-         (100)  See,    more   fully,    1  Chitty's 

ferent  authorities  in  support  of  this  Com.  L.  35. 
226 


MUTUAL   COMMERCE   OF   NATIONS.  145 

said  on  the  subject  (Book  I.  Chap.  VIII.),  may  suffice  to  BOOK  n. 
establish  the  principles  of  the  natural  law  of  nations  respect-  CHAP-  "• 
ing  the  mutual  commerce  of  states.  It  is  not  difficult  to 
point  out,  in  general,  what  are  the  duties  of  nations  in  this 
respect,  and  what  the  law  of  nature  prescribes  to  them  for 
the  good  of  the  great  society  of  mankind.  But,  as  each  na- 
tion is  only  so  far  obliged  to  carry  on  commerce  with  others 
as  she  can  do  it  without  being  wanting  to  herself,  and  as  the 
whole  ultimately  depends  on  the  judgment  that  each  state 
may  form  of  what  it  can  and  ought  to  do  in  particular  cases, 
nations  cannot  count  on  any  thing  more  than  generalities, 
such  as,  the  inherent  liberty  of  each  to  carry  on  trade,  and, 
moreover,  on  imperfect  rights,  which  depend  on  the  judgment 
of  others,  and,  consequently,  are  ever  uncertain'.  Where- 
fore, if  they  wish  to  secure  to  themselves  any  definite  and 
constant  advantages,  they  must  procure  them  by  treaties. 

Since  a  nation  has  a  full  right  to  regulate  herself  in  com-  §  27.  Gene- 
mercial  affairs  by  what  is  useful  or  advantageous  to  her,  she ral  rale . 
may  make  such  commercial  treaties  as  she  thinks  proper ; 
and  no  other  nation  has  a  right  to  take  offence,  provided 
those  treaties  do  not  affect  the  perfect  rights  of  others.  If, 
by  the  engagements  contracted,  a  nation,  unnecessarily,  or 
without  powerful  reasons,  renders  herself  incapable  of  join- 
ing in  the  general  trade  which  nature  recommends  between 
nations,  she  trespasses  against  her  duty.  But,  the  nation 
being  the  sole  judge  in  this  case  (Prelim.  §  16),  other  nations 
are  bound  to  respect  her  natural  liberty — to  acquiesce  in  her 
determination,  and  even  to  suppose  that  she  is  actuated  by 
substantial  reasons.  Every  commercial  treaty,  therefore, 
which  does  not  impair  the  perfect  right  of  others,  is  allowa- 
ble between  nations ;  nor  can  the  execution  of  it  be  lawfully 
opposed.  But  those  commercial  treaties  alone  are  in  them- 
selves just  and  commendable,  which  pay  to  the  general  inte- 
rest of  mankind  as  great  a  degree  of  respect  as  is  possible 
and  reasonable  in  the  particular  case. 

As  express  promises  and  engagements  should  be  inviolable,  §  28.  Duty 
every  wise  and  virtuous  nation  will  be  attentive  to  examine  of  nations 
and  weigh  a  commercial  treaty  before  she  concludes  it,  an 
to  take  care  that  she  be  not  thereby  engaged  to  any  thing  tieg* 
contrary  to  the  duties  which  she  owes  to  herself  and  others. 

Nations  may,  in  their  treaties,  insert  such  clauses  and  con-  §  29.  Per- 
ditions as  they  think  proper  ;  they  are  at  liberty  to  make  Petual  or 
them  perpetual,  or  temporary,  or  dependent  on  certain  events.  Jj^^fr 
It  is  usually  most  prudent  not  to  engage  for  ever,  as  circum-  p^^g  i 
stances  may  afterwards  intervene,  by  which  the  treaty  might  tj-eaties  re. 
become  very  oppressive  to  one  of  the  contracting  parties.    A  vocable  at 
nation  may  confine  a  treaty  to  the  grant  of  only  a  precarious  pleasure, 
right — reserving  to  herself  the  liberty  of  revoking  it  at  plea- 
sure.    We  have  already  observed  (Book  I.  §  94)  that  a  simple 
permission  does  not,  any  more  than  long  custom  (Ibid.  §  95), 


146  MUTUAL   COMMERCE   OF   NATIONS. 

BOOK  n.    give  any  perfect  right  to  a  trade.     These  things — namely. 
CHAP,  n.   permission  and  customs — are  therefore  not  to  be  confounded 
with  treaties, — not  even  with  those  which  give  only  a  preca- 
rious right. 

§  so.  No-        When  once  a  nation  has  entered   into   engagements  by 

thing  con-    treaty,  she  is  no  longer  at  liberty  to  do,  in  favour  of  others, 

tenor  of  a    contraiT  t°  tne  tenor  of  the  treaty,  what  she  might  otherwise 

treaty  can    have  granted  to  them  agreeably  to  the  duties  of  humanity  or 

be  granted  the  general  obligation  of  mutual  commerce  ;  for  she  is  to  do 

to  a  third     for  others  no  more  than  what  is  in  her  power ;  and,  having 

party-         deprived  herself  of  the  liberty  of  disposing  of  a  thing,  that 

thing  is  no  longer  in  her  power.     Therefore,  when  a  nation 

has  engaged  to  another  that  she  will  sell  certain  merchandise 

or  produce  to  the  latter  only — as,  for  instance,   corn — she 

can  no  longer  sell  it  to  any  other.     The  case  is  the  same  in 

a  contract  to  purchase  certain  goods  of  that  nation  alone. 

§31.  How       But  it  will  be  asked,  how  and  on  what  occasions  a  nation 

far  lawful  to  may  enter  into  engagements  which  deprive  her  of  the  liberty 

Slat  "the7   to  fulfil  her  duties  to  others-     As  the  duties  we  owe  to  our- 
liberty  of     selves  are  paramount  to  those  we  owe  to  others,  if  a  nation 
trading  with  finds  her  safety  and  substantial  advantage  in  a  treaty  of  this 
other  na-     nature,  she  is  unquestionably  justifiable  in  contracting  it,  espe- 
tions>          cially  as  she  does  not  thereby  interrupt  the  general  commerce 
of  nations,  but  simply  causes  one  particular  branch  of  her 
own  commerce  to  pass  through  other  hands,  or  insures  to  a 
particular  people  certain  things  of  which  they  stand  in  need. 
If  a  state  which  stands  in  need  of  salt  can  secure  a  supply  of 
it  from  another,  by  engaging  to  sell  her  corn  and  cattle  only 
to  that  other  nation,  who  will  doubt  but  that  she  has  a  right 
to  conclude  so  salutary  a  treaty  ?     In  this  case,  her  corn  or 
cattle  are  goods  which  she  disposes  of  for  supplying  her  own 
wants.     But,  from  what  we  have  observed  (§  28),  engage- 
ments of  this  kind  are  not  to  be  entered  into  without  very 
good  reasons.     However,  be  the  reasons  good  or  bad,  the 
treaty  is  still  valid,  and  other  nations  have  no  right  to  op- 
pose it  (§  27). 

§  32.  A  na-      Every  one  is  at  liberty  to  renounce  Ms  right ;  a  nation, 
tion  may     therefore,  may  lay  a  restriction  on  her  commerce  in  favour 
corameroe    °^  anotner  nation,  and  engage  not  to  traffic  in  a  certain  kind 
in  favour  of  °^  goods,  or  to  forbear  trading  with  such  and  such  a  country, 
another.       &c.     And,  in  departing  from  such  engagements,  she  acts 
against  the  perfect  right  of  the  nation  with  which  she  has  con- 
tracted, and  the  latter  has  a  right  to  restrain  her.     The 
natural  liberty  of  trade  is  not  hurt  by  treaties  of  this  nature ; 
for  that  liberty  consists  only  in  every  nation  being  unmolested 
in  her  right  to  carry  on  commerce  with  those  that  consent  to 
[  147  ]  traffic  with  her;  each  one  remaining  free  to  embrace  or  de- 
cline a  particular  branch  of  commerce,  as  she  shall  judge  most 
advantageous  to  the  state. 
Nations  not  only  carry  on  trade  for  the  sake  of  procuring 


MUTUAL    COMMERCE    OF    NATIONS.  147 

necessary  or  useful  articles,  but  also  with  a  view  to  make  it    BOOK  n. 
a  source  of  opulence.     Now,  wherever  a  profit  is  to  be  made,   CHAP,  n. 
it  is  equally  lawful  for  every  one  to  participate  in  it :  but  the  §  33.  A  na- 
niost  diligent  may  lawfully  anticipate  the  others  by  taking  tion  may 
possession  of  an  advantage  which  lies  open  to  the  first  occu-  aPPr°Priate 
pier  ; — he  may  even  secure  the  whole  entirely  to  himself,  if  ^2^. 
he  has  any  lawful  means  of  appropriating  it.     When,  there-  branch  of 
fore,  a  particular  nation  is  in  sole  possession  of  certain  articles,  trade, 
another  nation  may  lawfully  procure  to  herself  by  treaty  the 
advantage  of  being  the  only  buyer,  and  then  sell  them  again 
all  over  the  world.     And,  as  it  is  indifferent  to  nations  from 
what  hand  they  receive  the  commodities  they  want,  provided 
they  obtain  them  at  a  reasonable  price,  the  monopoly  of  this 
nation  does  not  clash  with  the  general  duties  of  humanity, 
provided  that  she  do  not  take  advantage  of  it  to  set  an  un- 
reasonable and  exorbitant  price  on  her  goods.     Should  she, 
by  an  abuse  of  her  monopoly,  exact  an  immoderate  profit,  this 
would  be  an  offence  against  the  law  of  nature,  as,  by  such  an 
exaction,  she  either  deprives  other  nations  of  a  necessary  or 
agreeable  article  which  nature  designed  for  all  men,  or  obliges 
them  to  purchase  it  at  too  dear  a  rate :    nevertheless,  she 
does  not  do  them  any  positive  wrong,  because,  strictly  speak- 
ing, and  according  to  external  right,  the  owner  of  a  commo- 
dity may  either  keep  it  or  set  what  price  he  pleases  on  it. 
Thus,  the  Dutch,  by  a  treaty  with  the  king  of  Ceylon,  have 
wholly  engrossed  the  cinnamon  trade :  yet,  whilst  they  keep 
their  profits  within  just  limits,  other  nations  have  no  right  to 
complain. 

But,  were  the  necessaries  of  life  in  question — were  the 
monopolist  inclined  to  raise  them  to  an  excessive  price — 
other  nations  would  be  authorized  by  the  care  of  their  own 
safety,  and  for  the  advantage  of  human  society,  to  form  a 
general  combination  in  order  to  reduce  a  greedy  oppressor  to 
reasonable  terms.  The  right  to  necessaries  is  very  different 
from  that  to  things  adapted  only  to  convenience  and  pleasure, 
which  we  may  dispense  with  if  they  be  too  dear.  It  would 
be  absurd  that  the  subsistence  and  being  of  other  nations 
should  depend  on  the  caprice  or  avidity  of  one. 

Among  the  modern  institutions  for  the  advantage  of  com-  §  34.  Con- 
merce,  one  of  the  most  useful  is  that  of  consuls,  or  persons suk-  (1§1) 

(101)  See  further  as  to  consuls,  post,  and  see  decisions  Albreton  v.  Sussman, 

B.  4,  ch.  8,  s.  75,  p.  461.     This  and  2  Ves.  &  B.  323 ;  4  Bar.  &  Cres.  886; 

the   following   sections  are  much  too  8  Moore's   Rep.    632;    7   T.  R.  251 ; 

concise  upon  the  important  subject  of  8  East,  364 ;  2  Chalm.  Opin.  294.     A 

consuls.     See   more   fully    1  Chitty's  foreign  consul  cannot  sue  a  merchant 

Commercial  Law,  48    to   73 ;  statute  here  for  any  supposed  services  in  that 

6  Geo.  4,  c.  87 ;  Warden  on  Consular  character— De    Lima    v.    Haldimand, 

Establishments,    Paris,    A.    p.    1813;  1  Ryan  &  Moody,  45 :  nor  is  he  pri- 

Madame    de    Steck,    a   Berlin,   1790 ;  vileged  from  arrest,  Vweash  v.  Belcher, 

Anderson's    Hist.    Commerce,   index,  3  Mau.  &  Selw.  284.     {He  is   liable 

titles,  «  Conservator,"  and  «  Consul ;"  as  garnishee  in  the  case  of  a  foreign 

U  229 


147  MUTUAL    COMMERCE    OF   NATIONS. 

BOOK  ii.  residing  in  the  large  trading  cities,  and  especially  the  sea- 
CHAP.  ii.  _  p0rts>  Of  foreign  countries,  with  a  commission  to  watch  over 
the  rights  and  privileges  of  their  nation,  and  to  decide  dis- 
putes between  her  merchants  there.  When  a  nation  trades 
largely  with  a  country,  it  is  requisite  to  have  there  a  person 
charged  with  such  a  commission :  and,  as  the  state  which 
allows  of  this  commerce  mus.t  naturally  favour  it, — for  the 
same  reason,  also,  it  must  admit  the  consul.  But,  there 
being  no  absolute  and  perfect  obligation  to  this,  the  nation 
[  148  ]  that  wishes  to  have  a  consul,  must  procure  this  right  by  the 
commercial  treaty  itself. 

The  consul  being  charged  with  the  affairs  of  his  sovereign, 
and  receiving  his  orders,  continues  his  subject,  and  account- 
able to  him  for  his  actions. 

The  consul  is  no  public  minister  (as  will  appear  by  what 
we  shall  say  of  the  character  of  ministers,  in  our  fourth  book), 
and  cannot  pretend  to  the  privileges  annexed  to  such  character. 
Yet,  bearing  his  sovereign's  commission,  and  being  in  this 
quality  received  by  the  prince  in  whose  dominions  he  resides, 
he  is,  in  a  certain  degree,  entitled  to  the  protection  of  the 
law  of  nations.  This  sovereign,  by  the  very  act  of  receiving 
him,  tacitly  engages  to  allow  him  all  the  liberty  and  safety 
necessary  to  the  proper  discharge  of  his  functions,  without 
which  the  admission  of  the  consul  would  be  nugatory  and 
delusive. 

The  functions  of  a  consul  require,  in  the  first  place,  that 
he  be  not  a  subject  of  the  state  where  he  resides :  as,  in  this 
case,  he  would  be.  obliged  in  all  things  to  conform  to  its 
orders,  and  thus  not  be  at  liberty  to  acquit  himself  of  the 
duties  of  his  office. 

They  seem  even  to  require  that  the  consul  should  be  inde- 

rdent  of  the  ordinary  criminal  justice  of  the  place  where 
resides,  so  as  not  to  be  molested  or  imprisoned  unless 
he  himself  violate  the  law  of  nations  by  some  enormous  crime. 
And,  though  the  importance  of  the  consular  functions  be 
not  so  great  as  to  procure  to  the  consul's  person  the  inviola- 
bility and  absolute  independence  enjoyed  by  public  ministers, 
— yet,  being  under  the  particular  protection  of  the  sovereign 
who  employs  him,  and  intrusted  with  the  care  of  his  concerns, 
— if  he  commits  any  crime,  the  respect  due  to  his  master 
requires  that  he  should  be  sent  home  to  be  punished.  Such 
is  the  mode  pursued  by  states  that  are  inclined  to  preserve  a 
good  understanding  with  each  other.  But  the  surest  way  is, 
expressly  to  settle  all  these  matters,  as  far  as  practicable,  by 
the  commercial  treaty. 

attachment  in  the  State  courts,  Kid-  Ravara,  2  Ball.  Rep.  297;  Conim.  v. 

der/mv.Jfl%er,2Miles'sRep.242;  and  Kozloff,  5  Serg.  &  Rawle,  545;    The 

to  indictment  for  misdemeanour  in  the  State  v.  De  la  Forest,  2  Nott  &  McCord's 

courts   of  the    United    States,   which  Rep.  545,  contra.} 
have  exclusive  jurisdiction,  U.  States  v. 
230 


DIGNITY   AND   EQUALITY   OF   NATIONS.  148 

Wicquefort,  in  his  treatise  of  The  Ambassador,  Book  I.  BOOK  n. 
§  5,  says,  that  consuls  do  not  enjoy  the  protection  of  the  law  CHAP-  "• 
of  nations,  and  that,  both  in  civil  and  criminal  cases,  they  are 
subject  to  the  justice  of  the  place  where  they  reside.  But  the 
very  instances  he  quotes  contradict  his  proposition.  The 
states-general  of  the  United  Provinces,  whose  consul  had  been 
affronted  and  put  under  arrest  by  the  governor  of  Cadiz,  com- 
plained of  it  to  the  court  of  Madrid  as  a  breach  of  the  law 
of  nations.  And,  in  the  year  1634,  the  republic  of  Venice 
was  near  coming  to  a  rupture  with  pope  Urban  VIII.  on 
account  of  the  violence  offered  to  the  Venetian  consul  by  the 
governor  of  Ancona.  The  governor,  suspecting  this  consul  to 
have  given  information  detrimental  to  the  commerce  of  An- 
cona, had  persecuted  him,  seized  his  furniture  and  papers, 
and  caused  him  to  be  summoned,  declared  guilty  of  contumacy, 
and  banished  under  pretence  that,  contrary  to  public  prohi- 
bition, he  had  caused  goods  to  be  unloaded  in  a  time  of  con-  [  149  ] 
tagion.  This  consul's  successor  he  likewise  imprisoned.  The 
Venetian  senate  warmly  insisted  on  having  due  satisfaction: 
and,  on  the  interposition  of  the  ministers  of  France,  who 
were  apprehensive  of  an  open  rupture,  the  pope  obliged 
the  governor  of  Ancona  to  give  the  republic  satisfaction 
accordingly. 

In  default  of  treaties,  custom  is  to  be  the  rule  on  these 
occasions ;  for,  a  prince,  who  receives  a  consul  without  ex- 
press conditions,  is  supposed  to  receive  him  on  the  footing 
established  by  custom. 


CHAP.  III. 

OF   THE   DIGNITY  AND  EQUALITY  OF  NATIONS — OF  TITLES,  AND    CHAP,  in. 
OTHER   MARKS    OF   HONOUR. 

EVERY  nation,  every  sovereign  and  independent  state,  §  35.  Dig- 
deserves  consideration  and  respect,  because  it  makes  an  im-  nity  of  na- 
mediate  figure  in  the  grand  society  of  the  human  race,  is tions  °r 
independent  of  all  earthly  power,  and  is  an  assemblage  of  a 
great  number  of  men,  which  is,  doubtless,  more  considerable 
than  any  individual.  The  sovereign  represents  his  whole 
nation ;  he  unites  in  his  person  all  its  majesty.  No  indivi- 
dual, though  ever  so  free  and  independent,  can  be  placed  in 
competition  with  a  sovereign ;  this  would  be  putting  a  single 
person  upon  an  equality  with  a  united  multitude  of  his  equals. 
Nations  and  sovereigns  are,  therefore,  under  an  obligation, 
and  at  the  same  time  have  a  right,  to  maintain  their  dignity, 
and  to  cause  it  to  be  respected,  as  being  of  the  utmost  im- 
portance to  their  safety  and  tranquillity. 

231 


149  DIGNITY   AND   EQUALITY   OF   NATIONS. 

BOOK  ii.        We  have  already  observed  (Prelim.  §  18)  that  nature  has 

CHAP,  in.   established  a  perfect  equality  of  rights  between  independent 

§  3G.  Their  nations.     Consequently,  none  can  naturally  lay  claim  to  any 

equality,      superior  prerogative :  for,  whatever  privileges  any  one  of 

them  derives  from  freedom  and  sovereignty,  the  others  equally 

derive  the  same  from  the  same  source. 

§  37.  Pre-  And  since  precedency  or  pre-eminence  of  rank  is  a  prero- 
cedency.  gative,  no  nation,  no  sovereign",  can  naturally  claim  it  as  a 
right.  Why  should  nations  that  are  not  dependent  on  him 
give  up  any  point  to  him  against  their  will  ?  However,  as  a 
powerful  and  extensive  state  is  much  more  considerable  in 
universal  society  than  a  small  state,  it  is  reasonable  that  the 
latter  should  yield  to  the  former  on  occasions  where  one  must 
necessarily  yield  to  the  other,  as,  in  an  assembly, — and  should 
pay  it  those  mere  ceremonial  deferences  which  do  not,  in 
fact,  destroy  their  equality,  and  only  show  a  superiority  of 
order,  a  first  place  among  equals.  Other  nations  will  natu- 
rally assign  the  first  place  to  the  more  powerful  state ;  and 
it  would  be  equally  useless  as  ridiculous  for  the  weaker  one 
obstinately  to  contend  about  it.  The  antiquity  of  the  state 
enters  also  into  consideration  on  these  occasions :  a  new 
[  150  ]  comer  cannot  dispossess  any  one  of  the  honours  he  has  en- 
joyed ;  and  he  must  produce  very  strong  reasons,  before  he 
can  obtain  a  preference. 

§38.  The  The  form  of  government  is  naturally  foreign  to  this  ques- 
formofgo-  tion.  The  dignity,  the  majesty,  resides  originally  in  the 
vemmentis  b0(jy  Of  t^e  state .  tjlat  Of  the  sovereign  is  derived  from  his 
thhTques-  representing  the  nation.  And,  can  it  be  imagined  that  a 
tion.  state  possesses  more  or  less  dignity  according  as  it  is  governed 

by  a  single  person  or  by  many  ?  At  present  kings  claim  a 
superiority  of  rank  over  republics :  but  this  pretension  has 
no  other  support  than  the  superiority  of  their  strength.  For- 
merly, the  Roman  republic  considered  all  kings  as  very  far 
beneath  them :  but  the  monarchs  of  Europe,  finding  none 
but  feeble  republics  to  oppose  them,  have  disdained  to  admit 
them  to  an  equality.  The  republic  of  Venice,  and  that  of 
the  United  Provinces,  have  obtained  the  honours  of  crowned 
heads ;  but  their  ambassadors  yield  precedency  to  those  of 
kings. 

§39.  A  In  consequence  of  what  we  have  just  established,  if  the 
state  ought  form  Of  government  in  a  nation  happens  to  be  changed,  she 
rank^nof8  w^  8*^  preserve  the  same  honours  and  rank  of  which  she 
withstand-  was  before  in  possession.  When  England  had  abolished  roy- 
ing  any  alty,  Cromwell  would  suffer  no  abatement  of  the  honours  that 
changes  in  na^  been  paid  to  the  crown  or  to  the  nation;  and  he  every- 
itT  fo™m-f  where  maintained  the  English  ambassadors  in  the  rank  they 
ment.  had  always  possessed. 

§  40.  In  If  *ne  grades  of  precedency  have  been  settled  by  treaties, 
this  respect,  or  by  long  custom  founded  on  tacit  consent,  it  is  necessary 
treaties  and  to  conform  to  the  established  rule.  To  dispute  with  a  prince 


DIGNITY  AND   EQUALITY   OP   NATIONS.  150 

the  rank  he  has  acquired  in  this  manner,  is  doing  him  an    BOOK  n. 
injury,  inasmuch  as  it  is  an  expression  of  contempt  for  him,   CHAP,  m. 
or  a  violation  of  engagements  that  secure  to  him  a  right,  established 
Thus,  by  the  injudicious  partition  between  the  sons  of  Charle-  customs 
magne,  the  elder  having  obtained  the  empire,  the  younger,  ought  *®  be 
who  received  the  kingdom  of  France,  yielded  precedency  to  °  serve  ' 
him  the  more  readily,  as  there  still  remained  at  that  time  a 
recent  idea  of  the  majesty  of  the  real  Roman  empire.     His 
successors  followed  the  rule  they  found  established : — they 
were  imitated  by  the  other  kings  of  Europe ;  and  thus  the 
imperial  crown  continues  to  possess,  without  opposition,  the 
first  rank  in  Christendom.     With  most  of  the  other  crowns, 
the  point  of  precedency  remains  yet  undetermined. 

Some  people  would  have  us  to  look  upon  the  precedency 
of  the  emperor  as  something  more  than  the  first  place  among 
equals ;  they  would  fain  attribute  to  him  a  superiority  over 
all  kings,  and,  in  a  word,  make  him  the  temporal  head  of 
Christendom.*  And  it,  in  fact,  appears  that  many  empe- 
rors entertained  ideas  of  such  pretensions, — as  if,  by  reviving 
the  name  of  the  Roman  empire,  they  could  also  revive  its 
rights.  Other  states  have  been  on  their  guard  against  these 
pretensions.  We  may  see  in  Mezeray  f  the  precautions  taken  [  151  ] 
by  king  Charles  V.  when  the  emperor  Charles  IV.  visited 
France,  "for  fear,"  says  the  historian,  "lest  that  prince, 
and  his  son,  the  king  of  the  Romans,  should  found  any  right 
of  superiority  on  his  courtesy."  Bodinus  relates,!  that  "the 
French  took  great  offence  at  the  Emperor  Sigismund's  placing 
himself  in  the  royal  seat  in  full  parliament,  and  at  his  having 
knighted  the  Senechal  de  Beaucaire," — adding,  that,  "to 
repair  the  egregious  error  they  had  committed  in  suffering  it, 
they  would  not  allow  the  same  emperor,  when  at  Lyons,  to 
make  the  Count  of  Savoy  a  duke."  At  present,  a  king  of 
France  would  doubtless  think  it  a  degradation  of  his  dignity, 
were  he  to  intimate  the  most  distant  idea  that  another  might 
claim  any  authority  in  his  kingdom.  || 

As  a  nation  may  confer  on  her  conductor  what  degree  of  §41.  Of  the 
authority  and  what  rights  she  thinks  proper,  she  is  equally  name  ***& 

*  Bartolus  went  so  far  as  to  say,  that  Count  Provana,  the  king  of  Sardinia's 

"  all  those  were  heretics  who  did  not  minister,  to  sign  a  deed,  in  which  he 

believe  that  the  emperor  was  lord  of  the  declared  that  neither  his  own  sovereign 

whole  earth."  See  Bodinus's  Republic,  nor  any  other  prince  had  a  right  to  dis- 

book  i.  ch.  ix.  p.  m.  139.  pute  pre-eminence  with  the  emperor. 

t  History  of  France,  explanation  of  Its  contents  being  made  public,  the 

the  medals  of  Charles  V.  kings  made  such  heavy  complaints  on 

j  In  his  Republic,  p.  138.  the  occasion,    that   Provana   was   re- 

U  Pentherrieder,  minister  plenipo-  called,  and  the  emperor  ordered  his 

tentiary  of  the  emperor  at  the  congress  minister  to  suppress  the  deed,— affect- 

of  Cambray,  made  an  attempt  to  insure  ing,  at  the  same  time,  a  profound  igno- 

to  his  master  an  incontestable  superi-  ranee  of  the  whole  transaction :  and 

ority  and  pre-eminence  over  all  the  thus  the  affair  was  dropped.  Memoirs 

other  crowned  heads.  He  induced  of  Mons.  de  St.  Philippe,  vol.  iv.  p.  194. 
30  u  2  233 


151  DIGNITY  AND    EQUALITY   OF   NATIONS. 

BOOK  ii.  free  in  regard  to  the  name,  the  titles,  and  honours  with 
CHAP,  in.  -which  she  may  choose  to  decorate  him.  But  discretion  and 
given  by  the  the  care  of  her  reputation  require  that  she  should  not,  in 
nation  to  its  this  respect,  deviate  too  far  from  the  customs  commonly 
conductor,  established  among  civilized  nations.  Let  us  further  observe, 
that,  in  this  point,  she  ought  to  be  guided  by  prudence,  and 
inclined  to  proportion  the  titles  and  honours  of  her  chief  to 
the  power  he  possesses,  and  'to  the  degree  of  authority  with 
which  she  chooses  to  invest  him.  Titles  and  honours,  it  is 
true,  determine  nothing :  they  are  but  empty  names,  and 
vain  ceremonies,  when  they  are  misplaced :  yet,  who  does 
not  know  how  powerful  an  influence  they  have  on  the  minds 
of  mankind?  This  is,  then,  a  more  serious  affair  than  it 
appears  at  the  first  glance.  The  nation  ought  to  take  care 
not  to  debase  herself  before  other  states,  and  not  to  degrade 
her  chief  by  too  humble  a  title :  she  ought  to  be  still  more 
careful  not  to  swell  his  heart  by  a  vain  name,  by  unbounded 
honours,  so  as  to  inspire  him  with  the  idea  of  arrogating  to 
himself  a  commensurate  authority  over  her,  or  of  acquiring 
a  proportionate  power  by  unjust  conquests.  On  the  other 
hand,  an  exalted  title  may  engage  the  chief  to  support,  with 
greater  firmness,  the  dignity  of  the  nation.  Prudence  is 
guided  by  circumstances,  and,  on  every  occasion,  keeps 
within  due  bounds.  "Royalty,"  says  a  respectable  author, 
who  may  be  believed  on  this  subject,  "rescued  the  house 
of  Brandenburg  from  that  yoke  of  servitude  under  which 
the  house  of  Austria  then  kept  all  the  German  princes. 
This  was  a  bait  which  Frederic  I.  threw  out  to  all  his  pos- 
terity, saying  to  them,  as  it  were,  I  have  acquired  a  title  for 
[  152  ]  you ;  do  you  render  yourselves  worthy  of  it :  I  have  laid  the 
foundations  of  your  greatness ;  it  is  you  who  are  to  finish  the 
work."* 

§42.  Whe-      If  the  conductor  of  the  state  is  sovereign,  he  has  in  his 

ther  a  sove-  hands  the  rights  and  authority  of  the  political  society ;  and 

reign  may    consequently  he  may  himself  determine  what  title  he  will 

what  title     assume,  and  what  honours  shall  be  paid  to  him,  unless  these 

and  honours  have  been  already  determined  by  the  fundamental  laws,  or 

he  pleases,    that  the  limits  which  have  been  set  to  his  power  manifestly 

oppose  such  as  he  wishes  to  assume.    His  subjects  are  equally 

obliged  to  obey  him  in  this  as  in  whatever  he   commands 

by  virtue  of  a  lawful  authority.     Thus,  the  Czar  Peter  I., 

grounding  his  pretensions  on  the  vast  extent  of  his  dominions, 

took  upon  himself  the  title  of  emperor. 

§  43.  itight      But  foreign  nations  are  not  obliged  to  give  way  to  the  will 
of  other  na-  Of  a  sovereign  who  assumes  a  new  title,  or  of  a  people  who 

re°specT         CaH  thelr  Chief  ^  What  name  they  Please't 

*  Memoirs  of  the  House  of  Branden-     — -"  Olivarius,  Dominus  Protector  An- 

burg.  glise,   Scotise,   et   Hibernise,   Ludovico 

f  Cromwell,  in  writing  to  Louis  the     XIV.  Francorum  Regi  Christianissime 

Fourteenth,  used  the  following  style  :     Rex." — And   the   subscription  was— 

234 


DIGNITY   AND   EQUALITY   OF   NATIONS.  152 

However,  if  this  title  has  nothing  unreasonable,  or   con-    BOOK  n. 
trary  to  received  customs,  it  is  altogether  agreeable  to  the   CHAP-  m- 
mutual  duties  which  bind  nations  together,  to  give  to  a  sove-  §  44.  Their 
reign  or  conductor  of  a  state  the  same  title  that  is  given  him  duty, 
by  his  people.     But,  if  this  title  is  contrary  to  custom — if  it 
implies  attributes  which  do  not  belong  to  him  who  affects  it, 
foreign  nations  may  refuse  it  without  his  having  reason  to 
complain.     The  title  of  "Majesty"  is  consecrated  by  custom 
to  monarchs  who  command  great  nations.     The  emperors  of 
Germany  have  long  affected  to  reserve  it  to  themselves,  as 
belonging    solely  to   the   imperial    crown.      But   the    kings 
asserted  with  reason  that  there  was  nothing  on  earth  more 
eminent  or  more  august  than  their  dignity :  they  therefore 
refused  the  title  of  Majesty  to  him  who  refused  it  to  them;* 
and  at  present,  except  in  a  few  instances  founded  on  parti- 
cular reasons,  the  title  of  Majesty  is  a  peculiar  attribute  of  the 
royal  character. 

As  it  would  be  ridiculous  for  a  petty  prince  to  take  the 
title  of  king,  and  assume  the  style  of  "  Majesty,"  foreign 
nations,  by  refusing  to  comply  with  this  whim,  do  nothing 
but  what  is  conformable  to  reason  and  their  duty.  However, 
if  there  reigns  anywhere  a  sovereign,  who,  notwithstanding 
the  small  extent  of  his  power,  is  accustomed  to  receive  from 
his  neighbours  the  title  of  king,  distant  nations  who  would  j~  153  ~j 
carry  on  an  intercourse  with  him  cannot  refuse  him  that 
title.  It  belongs  not  to  them  to  reform  the  customs  of  distant 
countries. 

The   sovereign  who  wishes  constantly  to  receive  certain  §  45.  How 
titles  and  honours  from  other  powers,  must  secure  them  by*ltlesand 
treaties.     Those  who  have  entered  into  engagements  in  this  j 
way  are   obliged  to   conform  to  them,  and   cannot   deviate  cured. 
from  the  treaties   without   doing  him  an  injury.     Thus,  in 
the  examples  we  have  produced  (§§  41  and  42),  the  czar  and 
the  king  of  Prussia  took  care  to  negotiate  beforehand  with 
the  courts  in  friendship  with  them,  to  secure  their  being  ac- 
knowledged under  the  new  titles  they  intended  to  assume. 

The  popes  have  formerly  pretended  that  it  belonged  to 
the  tiara  alone  to  create  new  crowns ;  they  had  the  confi- 
dence to  expect  that  the  superstition  of  princes  and  nations 
would  allow  them  so  sublime  a  prerogative.  But  it  was 

« In  Aula  nostra  Alba.  Vester  bonus  *  At  the  famous  treaty  of  West- 

amicus."     The  court  of  France  was  phalia,  the  plenipotentiaries  of  France 

highly  offended  at  this  form  of  address,  agreed    with    those    of    the    emperor, 

The  ambassador  Boreel,  in  a  letter  to  «•  that    the   king    and   queen    writing 

the  Pensionary  De  Witt,  dated  May  25,  with  their  own  hand  to  the  emperor, 

1655,  said  that  Cromwell's  letter  had  and  giving  him  the  title  of  majesty, 

not  been  presented,  and  that  those  who  he  should  answer  them,  with  his  own 

were  charged  with  the  delivery  of  it,  hand,  and  give  them  the  same  title." 

had  withheld  it,  through  an  apprehen-  Letter  of  the  plenipotentiaries  to  M. 

sion  of  its  giving  rise  to  some  misunder-  de  Brienne,  Oct.  15th,  1646. 
standing  between  the  two  countries. 


153  DIGNITY  AND   EQUALITY  OF  NATIONS. 

BOOK  ii.   eclipsed  at  the  revival  of  letters.*     The  emperors  of  Ger- 
CHAP,  in.  many,  who  formed  the  same  pretensions,  were  at  least  coun- 
tenanced by  the  example  of  the  ancient  Roman  emperors. 
They  only  want  the  same  power  in  order  to  have  the  same 
right. 

§  46.   We       In  default  of  treaties,  we  ought,  with  respect  to  titles,  and, 
must  coi>    jn  genial,  every  other  mark  of  honour,  to  conform  to  the 
neral  cusT"  ru^e  established  by  general  custom.     To  attempt  a  deviation 
torn.  (102)   from  it  with  respect  to  a  nation  or  sovereign,  when  there  is  no 
particular  reason  for  such  innovation,  is    expressing  either 
contempt  or  ill-will  towards  them ; — a  conduct  equally  incon- 
sistent with  sound  policy  and  with  the  duties  that  nations  owe 
to  each  other.  (102) 

§  47.  Mu-       The  greatest  monarch  ought  to  respect  in  every  sovereign 

tual  respect  the  eminent  character  with  which  he  is  invested.     The  in- 

which  sove-  dependence,  the  equality  of  nations,  the  reciprocal  duties  of 

to1each°We  hunrnmtVj — all  these  circumstances  should  induce  him  to  pay, 

other.          even   to  the  chief  of  a  petty  state,  the  respect  due  to  the 

station  which  he  fills.    The  weakest  state  is  composed  of  men 

as  well  as  the  most  powerful :  and  our  duties  are  the  same 

towards  all  those  who  do  "not  depend  on  us. 

But  this  precept  of  the  law  of  nature  does  not  extend  be- 
yond what  is  essential  to  the  respect  which  independent 
nations  owe  to  each  other,  or  that  conduct,  in  a  word,  which 
shows  that  we  acknowledge  a  state  or  its  chief  to  be  truly 
independent  and  sovereign,  and  consequently  entitled  to 
every  thing  due  to  the  quality  of  sovereignty.  But,  on  the 
other  hand,  a  great  monarch  being,  as  we  have  already  ob- 
served, a  very  important  personage  in  human  society,  it  is 
natural,  that,  in  matters  merely  ceremonial,  and  not  deroga- 
tory to  the  equality  of  rights  between  nations,  he  should 
[  154  ]  receive  honours  to  which  a  petty  prince  can  have  no  preten- 
sions :  and  the  latter  cannot  refuse  to  pay  the  former  every 
mark  of  respect  which  is  not  inconsistent  with  his  own  inde- 
pendence and  sovereignty. 

§48.  How       Every  nation,   every  sovereign,  ought  to  maintain  their 
a  sovereign  dignity  (§  35)  by  causing  due  respect  to  be  paid  to  them ; 

ought  to 

maintain  his 

dignity.  *  Catholic  princes  receive  still  from  of  2<1  vol.  p.  324.     See,  as  to  the  sea 

(103)  the  pope  titles  that  relate  to  religion,  and  incidents,  ante,  125  and    131  in 

Benedict  XIV.  gave   that  of  "Most  notes ;  and  Cours  de  Droit  Public,  torn. 

Faithful"   to   the   king   of  Portugal ;  2,  p.  80  to  84,  and  396  to  406.— C. 
and  the  condescension  of  other  princes         (103)  The  House  of  Lords  recently, 

connived   at   the   imperative   style  in  rather  facetiously,  maintained  the  dig- 

which  the  bull  is  couched. — It  is  dated  nity  of  the  king  of  Spain,  by  declining 

December  23,  1748.  to  give  him  costs,  on  the  same  principle 

(102)  Formerly  all  nations  used  to  that  our  king  do*-)  not  recover  costs, 

observe,  in  the  British  seas,  the  mark  saying,  we  will  not  disparage  the  dig- 

of  honour,  by  lowering  the  flag  or  top-  nity  of  the   king  of  Spain  by  giving 

sail  to  an  English  man  of  war,  called  him  costs.     Hewlett  \.  King  of  Spain, 

the  duty  of  the  flag.     See  1   Chitty's  on  appeal  from  Chancery  to  House  of 

Commercial  Law,  102;  and  see   end  Lords,  1  Dow  Rep.  New  Series,  177. 
236 


OF   THE   RIGHT   TO    SECURITY,  ETC.  154 

and,  especially,  they  ought  not  to  suffer  that  dignity  to  be    BOOK  n. 
impaired.     If,  then,  there  are  titles  and  honours,  which,  by  CHAP,  in. 
constant    custom,  belong   to    a  prince,   he  may  insist  upon 
them ;  and  he  ought  to  do  it  on  occasions  where  his  glory  is 
concerned. 

But  it  is  proper  to  distinguish  between  neglect  or  the  omis- 
sion of  what  the  established  usage  requires,  and  positive  acts 
of  disrespect  and  insult.  The  prince  may  complain  of  an 
instance  of  neglect,  and,  if  it  be  not  repaired,  may  consider 
it  as  an  indication  of  ill-will :  he  has  a  right  to  demand,  even 
by  force  of  arms,  the  reparation  of  an  insult.  The  czar  Peter 
the  First,  in  his  manifesto  against  Sweden,  complained  that 
the  cannon  had  not  been  fired  on  his  passing  at  Riga.  He 
might  think  it  strange  that  they  did  not  pay  him  this  mark 
of  respect,  and  he  might  complain  of  it ;  but,  to  have  made 
this  the  subject  of  a  war,  must  have  indicated  a  preposterous 
prodigality  of  human  blood. 


CHAP.  IV. 

OF   THE   RIGHT   TO  SECURITY,  AND   THE  EFFECTS  OF  THE  SOVE-    CHAP.  TV. 
REIGNTY   AND    INDEPENDENCE    OF    NATIONS.  (104) 

IN  vain  does  nature  prescribe  to  nations,  as  well  as  to  indi-  §  49.  Right 
viduals,  the  care  of  self-preservation,  and  of  advancing  their  to  security, 
own  perfection  and  happiness,  if  she  does  not  give  them  a 
right  to  preserve  themselves  from  every  thing  that  might 
render  this  care  ineffectual.  This  right  is  nothing  more  than 
a  moral  power  of  acting,  that  is,  the  power  of  doing  what  is 
morally  possible — what  is  proper  and  conformable  to  our 
duties.  We  have,  then,  in  general,  a  right  to  do  whatever  is 
necessary  to  the  discharge  of  our  duties.  Every  nation,  as 
well  as  every  man,  has,  therefore,  a  right  to  prevent  other 
nations  from  obstructing  her  preservation,  her  perfection, 
and  happiness, — that  is,  to  preserve  herself  from  all  injuries 
(§  18) :  and  this  right  is  a  perfect  one,  since  it  is  given  to 
satisfy  a  natural  and  indispensable  obligation :  for,  when  we 
cannot  use  constraint  in  order  to  cause  our  rights  to  be  re- 
spected, their  effects  are  very  uncertain.  It  is  this  right 
to  preserve  herself  from  all  injury  that  is  called  the  right  to 
security. 

It  is  safest  to  prevent  the  evil  when  it  can  be  prevented.  §50.  Itpro- 
A  nation  has  a  right  to  resist  an  injurious  attempt,  and  to  d.uces  the 
make  use  of  force  and  every  honourable  expedient  against 

(104)  As  to  the   independence   of     Public.  Paris,  A.  D.  1830,  torn.  2,  1st 
nations,  see  in  general,  Cours  de  Droit    part,  article  ii.  pp.  3  to  15. 

237 


154  OF   THE   RIGHT   TO    SECURITY,   ETC. 

BOOK  n.   whosoever  is  actually  engaged  in  opposition  to  her,  and  even 

CHAP,  iv.   to  anticipate  his  machinations,  observing,  however,  not  to 

attack  him  upon  vague  and  uncertain   suspicions,  lest    she 

should  incur  the  imputation  of  becoming  herself  an  unjust 

[  155  ]  aggressor. 

§51.  and         When  the  evil  is  done,  the  same  right  to  security  autho- 
that  of  ob-   rizes  the  offended  party  to  endeavour  to  obtain  a  complete 
t^tionre~   reparation,  and  to  employ  force  for  that  purpose,  if  neces- 
sary. 

§52.  and  Finally,  the  offended  party  have  a  right  to  provide  for 
the  right  of  their  future  security,  and  to  chastise  the  offender,  by  inflict- 
pumshmg.  -^  Up0n  kjm  a  punishment  capable  of  deterring  him  thence- 
forward from  similar  aggressions,  and  of  intimidating  those 
who  might  be  tempted  to  imitate  him.  They  may  even,  if 
necessary,  disable  the  aggressor  from  doing  further  injury. 
They  only  make  use  of  their  right,  in  all  these  measures, 
which  they  adopt  with  good  reason  :  and  if  evil  thence  results 
to  him  who  has  reduced  them  to  the  necessity  of  taking  such 
steps,  he  must  impute  the  consequences  only  to  his  own  in- 
justice. 

§  53.  Right      If,  then,  there  is  any\«here  a  nation  of  a  restless  and  mis- 

of  all  na-     chievous  disposition,  ever  ready  to  injure  others,  to  traverse 

a^misdtue"8  their  designs,  and  to  excite  domestic  disturbances  in  their 

vou»;  people  dominions, — it  is  not  to  be  doubted  that  all  the  others  have 

a  right  to  form  a  coalition  in  order  to  repress  and  chastise  that 

nation,  and  to  put  it  for  ever  after  out  of  her  power  to  injure 

them.     Such  would   be  the  just  fruits  of  the  policy  which 

Machiavel  praises  in  Caesar  Borgia.     The  conduct  followed 

by  Philip   II.  king   of   Spain,  was    calculated    to  unite   all 

Europe  against  him  ;  and  it  was  from  just  reasons  that  Henry 

the  Great  formed  the  design  of  humbling  a  power    whose 

strength  was  formidable,  and  whose  maxims  were  pernicious. 

The  three  preceding  propositions  are  so  many  principles 

that  furnish  the  various  foundations  for  a  just  war,  as  we  shall 

see  in  the  proper  place. 

§  54.  No         -^  *s  an  evident  consequence  of  the  liberty  and  independ- 
nation  has    ence  of  nations,  that  all  have  a  right  to  be  governed  as  they 
a  right  to     think    proper,  and   that  no  state  has  the  smallest  right  to 
re  m  interfere  in  the  government  of  another.     Of  all  the  rights 
menfofan-  *na*  can  belong  to  a  nation,  sovereignty  is,  doubtless,  the 
other  state,  most  precious,  and  that  which  other  nations  ought  the  most 
scrupulously  to   respect,  if  they  would   not  do  her  an  in- 
jury. (105) 

The  sovereign  is  he  to  whom  the  nation  has  intrusted  the 

(105)  Nor  has  a  subject  of  one  state  state  assist  a  revolted  colony,  it  is  just 

a  right  to  enter  into  any  contract  with,  ground  of  war  on  the  part  of  the  parent 

or  to  assist  the  revolted  colony  of  an-  state.     Thompson  v.  Powles,  2  Simon's 

other  before  the  same  has  been   for-  Rep.  194;  Taylor  v.  Barclay,  id.  213. 

mally  recognised   as  an   independent  Ante,  p.  141,  note  95. 
state  by  its  own  government ;  and  if  a 


OF  THE   RIGHT   TO    SECURITY,    ETC.  155 

empire  and  the  care  of  the  government :  she  has  invested  him    BOOK  n. 
with  her  rights  ;  she  alone  is  directly  interested  in  the  manner   CHAP,  iv. 
in  which  the  conductor  she  has  chosen  makes  use  of  his  power.  §  55.  One 
It  does  not,  then,  belong  to  any  foreign  power  to  take  cog-  sovereign 
nisance  of  the  administration  of  that  sovereign,  to  set  himself  cannotmake 
up  for  a  judge  of  his  conduct,  and  to  oblige  him  to  alter  it.  jjj^o^ 
If  he  loads  his  subjects  with  taxes,  and  if  he  treats  them  with  conduct  of 
severity,  the  nation  alone  is  concerned  in  the  business ;  and  another, 
no  other  is  called  upon  to  oblige  him  to  amend  his  conduct, 
and  follow  more  wise  and  equitable  maxims.     It  is  the  part 
of  prudence  to  point  out  the  occasions  when  officious  and  ami- 
cable representations  may  be  made  to  him.     The  Spaniards 
violated  all  rules  when  they  set  themselves  up  as  judges  of 
the  Inca  Athualpa.     If  that  prince  had  violated  the  law  of 
nations  with  respect  to  them,  they  would  have  had  a  right  to  [  156  ] 
punish  him.    But  they  accused  him  of  having  put  some  of  his 
subjects  to  death,  of  having  had  several  wives,  &c. — things, 
for  which  he  was  not  at  all  accountable  to  them ;  and,  to  fill 
up  the  measure  of  their  extravagant  injustice,  they  condemned 
him  by  the  laws  of  Spain.* 

But,  if  the  prince,  by  violating  the  fundamental  laws,  gives  §  55.  HOW 
his  subjects  a  legal  right  to  resist  him, — if  tyranny,  becom- far  lawful  to 
ing  insupportable,  obliges  the  nation  to  rise  in  their  own  de-  interfere  in 
fence, — every  foreign  power  has  a  right  to  succour  an  op-  ^e^era  a 
pressed  people  who  implore  their  assistance.     The  English  S0vereign 
justly  complained  of  James  II.     The  nobility  and  the  most  and  his  sub- 
distinguished  patriots  having  determined  to  check  him  in  theJects* 
prosecution  of  his  schemes,  which  manifestly  tended  to  over- 
throw the  constitution,  and  to  destroy  the  liberties  and  the 
religion  of  the  people,  applied  for  assistance  to  the  United 
Provinces.     The    authority   of  the   Prince   of   Orange  had, 
doubtless,  an  influence  on  the   deliberations  of  the  states- 
general  ;  but  it  did  not  lead  them  to  the  commission  of  an 
act  of  injustice :  for,  when  a  people,  from  good  reasons  take 
up  arms  against  an  oppressor,  it  is  but  an  act  of  justice  and 
generosity  to  assist  brave  men  in  the  defence  of  their  liber- 
ties.    Whenever,  therefore,  matters  are  carried  so  far  as  to 
produce  a  civil  war,  foreign  powers  may  assist  that  party 
which  appears  to  them  to  have  justice  on  its  side.     He  who 
assists  an  odious  tyrant, — he  who  declares  for  an  unjust  and 
rebellious  people, — violates  his  duty.     But,  when  the  bands 
of  the  political  society  are  broken,  or  at  least  suspended, 
between  the  sovereign  and  his  people,  the  contending  parties 
may  then  be  considered  as  two  distinct  powers ;  and,  since 
they  are  both  equally  independent  of  all  foreign  authority, 
nobody  has  a  right  to  judge  them.     Either  may  be  in  the 
right ;  and  each  of  those  who  grant  their  assistance  may  ima- 
gine that  he  is  acting  in  support  of  the  better  cause.     It  fol- 

•  Garcillasso  de  la  Vega. 


156  OF   THE   RIGHT   TO    SECURITY,    ETC. 

BOOK  ii.    lows,  then,  in   virtue  of  the  voluntary  law  of  nations  (see 
CHAP,  iv.   Prelim.  §  21),  that  the  two  parties  may  act  as  having  an  equal 
right,  and  behave  to  each  other  accordingly  till  the  decision 
of  the  affair. 

But  we  ought  not  to  abuse  this  maxim,  and  make  a  handle 
of  it  to  authorize  odious  machinations  against  the  internal 
tranquillity  of  states.  It  is  a  violation  of  the  law  of  nations 
to  invite  those  subjects  to  revolt  who  actually  pay  obedience 
to  their  sovereign,  though  they  complain  of  his  government. 
The  practice  of  nations  is  conformable  to  our  maxims. 
When  the  German  protestants  came  to  the  assistance  of  the 
reformed  party  in  France,  the  court  never  attempted  to  treat 
them  otherwise  than  on  the  usual  footing  of  enemies  in  general, 
and  according  to  the  laws  of  war.  France  was  at  the  same 
time  engaged  in  assisting  the  Netherlands  then  in  arms  against 
Spain,  and  expected  that  her  troops  should  be  considered  in 
no  other  light  than  as  auxiliaries  in  a  regular  war.  But  no 
power  ever  fails  to  complain,  as  of  an  atrocious  wrong,  if 
any  one  attempts  by  his  emissaries  to  excite  his  subjects  to 
revolt. 

[  157  ]  As  to  those  monsters  who,  under  the  title  of  sovereigns, 
render  themselves  the  scourges  and  horror  of  the  human  race, 
they  are  savage  beasts,  whom  every  brave  man  may  justly 
exterminate  from  the  face  of  the  earth.  All  antiquity  has 
praised  Hercules  for  delivering  the  world  from  an  Antaeas,  a 
Busiris,  and  a  Diomede. 

§  57.  Right  After  having  established  the  position  that  foreign  nations 
of  opposing  have  no  right  to  interfere  in  the  government  of  an  independ- 
the  interfer-  t  state  ft  js  not  difficuit  to  prove  that  the  latter  has  a  right 
enceoffor-  .  .  _  «L,  ,  ,„  ,.  ° 

eign  powers  *°  oppose  such  interference.     To  govern  herself  according  to 
in  the  affairs  her  own  pleasure,  is  a  necessary  part  of  her  independence, 
of  govern-    A  sovereign  state  cannot  be  constrained  in  this  respect,  except 
. ment*          it  be  from  a  particular  right  which  she  has  herself  given  to 
other  states  by  her  treaties ;  and,  even  if  she  has  given  them 
such  a  right,  yet  it  cannot,  in  an  affair  of  so  delicate  a  nature 
as  that  of  government,  be  extended  beyond  the  clear  and 
express  terms  of  the  treaties.     In  every  other  case,  a  sove- 
reign has  a  right  to  treat  those  as  enemies  who  attempt  to 
interfere  in  his  domestic  affairs  otherwise  than  by  their  good 
offices. 

§  58.  The  Religion  is  in  every  sense  an  object  of  great  importance  to 
same  rights  a  nation,  and  one  of  the  most  interesting  subjects  on  which 
governmen*  can  De  employed.  An  independent  people 
are  accountable  for  their  religion  to  God  alone;  in  this  par- 
ticular, as  in  every  other,  they  have  a  right  to  regulate  their 
conduct  according  to  the  dictates  of  their  own  conscience, 
and  to  prevent  all  foreign  interference  in  an  affair  of  so  deli- 
cate a  nature.*  The  custom,  long  kept  up  in  Christendom, 

•  When,  however,  we  see  a  party     the  religion  we  profess,  and  :u  neigh  - 
inflamed  with   deadly  hatred   against     bouring  prince  persecuting  in   oonse- 
240 


OF   THE   RIGHT   TO    SECURITY,  ETC.  157 

of  causing  all  the  affairs  of  religion  to  be  decided  and  regu-  BOOK  n. 
lated  in  a  general  council,  could  only  have  been  introduced  CHAP,  iv. 
by  the  singular  circumstance  of  the  submission  of  the  whole 
church  to  the  same  civil  government, — the  Roman  empire. 
When  that  empire  was  overthrown,  and  gave  place  to  many 
independent  kingdoms,  this  custom  was  found  contrary  to 
the  first  principles  of  government,  to  the  very  idea  of  inde- 
pendent states  and  political  societies.  It  was,  however,  long 
supported  by  prejudice,  ignorance,  and  superstition,  by  the 
authority  of  the  popes  and  the  power  of  the  clergy,  and  still 
respected  even  at  the  time  of  the  reformation.  The  states 
who  had  embraced  the  reformed  religion  offered  to  submit  to 
the  decisions  of  an  impartial  council  lawfully  assembled.  At 
present  they  would  not  hesitate  to  declare,  that,  in  matters 
of  religion,  they  are  equally  independent  of  every  power  on 
earth,  as  they  are  in  the  affairs  of  civil  government.  The 
general  and  absolute  authority  of  the  pope  and  council  is  [  158  ] 
absurd  in  every  other  system  than  that  of  those  popes  who 
strove  to  unite  all  Christendom  in  a  single  body,  of  which 
they  pretended  to  be  the  supreme  monarchs.*  But  even 
Catholic  sovereigns  have  endeavoured  to  restrain  that  autho- 
rity within  such  limits  as  are  consistent  with  their  supreme 
power :  they  do  not  receive  the  decrees  of  councils  or  the 
popes'  bulls  till  they  have  caused  them  to  be  examined ;  and 
these  ecclesiastical  laws  are  of  no  force  in  their  dominions 
unless  confirmed  by  the  prince.  In  the  first  book  of  this 
work,  Chap.  XII.  we  have  sufficiently  established  the  rights 
of  a  state  in  matters  of  religion ;  and  we  introduce  them 
here  again,  only  to  draw  just  consequences  from  them  with 
respect  to  the  conduct  which  nations  ought  to  observe  towards 
each  other. 

It  is,  then,  certain  that  we  cannot,  in  opposition  to  the  will  §59. Nona- 
of  a  nation,  interfere  in  her  religious  concerns,  without  vio- tlon  can  b® 
lating  her  rights,  and  doing  her  an  injury.     Much  less  are  ^freTect 
we  allowed  to  employ  force  of  arms  to  oblige  her  to  receive  to  religion. 
a  doctrine  and  a  worship  which  we  consider  as  divine.     What 
right  have  men  to  set  themselves  up  as  the  defenders  and  pro- 
tectors of  the  cause  of  God  ?     He  can,  whenever  he  pleases, 
lead  nations  to  the  knowledge  of  himself,  by  more  effectual 
means  than  those  of  violence.     Persecutors  make  no  true  con- 
verts.    The  monstrous  maxim  of  extending  religion  by  the 
sword,  is  a  subversion  of  the  rights  of  mankind,  and  the  most 

quence  the  professors  of  that  religion,  nature  requires  that  I  should   antici- 
it  is  lawful  for  us  to  give  assistance  to  pate  and  prevent  the  evil  which  may 
the  sufferers,— as  it  was  well  remarked  thence  result  to  myself." — Le  Vassor, 
by  James  I.  of  England  to  Bouillon  History  of  Louis  XIII. 
the    ambassador   of  Mary  de   Medici,         *    See  above,  §  46,  and    Bodinus's 
queen-regent  of  France,—"  When  my  Republic,  book  i.  c.  ix,  with  his  quo- 
neighbours  are  attacked  in  a  quarrel  tations,  p.  m.  139. 
in  which  I  am  interested,  the  law  of 

31  V  241 


158  OF   THE   RIGHT   TO    SECURITY,    ETC. 

BOOK  n.  terrible  scourge  of  nations.  Every  madman  will  fancy  he  is 
CHAP,  iv.  fighting  in  the  cause  of  God,  and  every  aspiring  spirit  will 
use  that  pretext  as  a  cloak  for  his  ambition.  While  Char- 
lemagne was  ravaging  Saxony  with  fire  and  sword,  in  order 
to  plant  Christianity  there,  the  successors  of  Mohammed  were 
ravaging  Asia  and  Africa,  to  establish  the  Koran  in  those 
parts. 

§  60.  Offi-  But  it  is  an  office  of  humanity  to  labour,  by  mild  and  law- 
manit  in  ^  means>  *°  persuade  a  nation  to  receive  a  religion  which 
these  mat-  we  believe  to  be  the  only  one  that  is  true  and  salutary.  Mis- 
ters, sionaries  may  be  sent  to  instruct  the  people ;  and  this  care  is 
Missiona-  altogether  comformable  to  the  attention  which  every  nation 
ries.  owes  to  the  perfection  and  happiness  of  others.  But  it  must 
be  observed,  that,  in  order  to  avoid  doing  an  injury  to  the 
rights  of  a  sovereign,  the  missionaries  ought  to  abstain  from 
preaching  clandestinely,  or  without  his  permission,  a  new  doc- 
trine to  his  people.  He  may  refuse  to  accept  their  proffered 
services ;  and,  if  he  orders  them  to  leave  his  dominions,  they 
ought  to  obey.  They  should  have  a  very  express  order  from 
the  King  of  kings,  before  they  can  lawfully  disobey  a  sove- 
reign who  commands  according  to  the  extent  of  his  power ; 
and  the  prince  who  is  not  convinced  of  that  extraordinary 
order  of  the  Deity,  will  do  no  more  than  exert  his  lawful 
rights,  in  punishing  a  missionary  for  disobedience.  But, 
what  if  the  nation,  or  a  considerable  part  of  the  people,  are 
desirous  of  retaining  the  missionary,  and  following  his  doc- 
[  159  ]  trine  ?  In  a  former  part  of  the  work  (Book  I.  §§  128—136), 
we  have  established  the  rights  of  the  nation  and  those  of  the 
citizens;  and  thither  we  refer  for  an  answer  to  this  question. 
§61.  Cir-  This  is  a  very  delicate  subject;  and  we  cannot  authorize 
cumspection  an  inconsiderate  zeal  for  malting  proselytes,  without  endan- 
gering the  tranquillity  of  all  nations,  and  even  exposing  those 
who  are  engaged  in  making  converts  to  act  inconsistently 
with  their  duty,  at  the  very  time  they  imagine  they  are  accom- 
plishing the  most  meritorious  work.  For,  it  is  certainly  per- 
forming a  very  bad  office  to  a  nation,  and  doing  her  an  essen- 
tial injury,  to  spread  a  false  and  dangerous  religion  among 
the  inhabitants.  Now,  there  is  no  person  who  does  not  be- 
lieve his  own  religion  to  be  the  only  true  and  safe  one.  Re- 
commend, kindle  in  all  hearts,  the  ardent  zeal  of  the  missiona- 
ries, and  you  will  see  Europe  inundated  with  Lamas,  Bonzes, 
and  Dervises,  while  monks  of  all  kinds  will  overrun  Asia  and 
Africa.  Protestant  ministers  will  crowd  to  Spain  and  Italy, 
in  defiance  of  the  Inquisition,  while  the  Jesuits  will  spread 
themselves  among  the  Protestants  in  order  to  bring  them  back 
into  the  pale  of  the  church.  Let  the  Catholics  reproach  the 
Protestants  as  much  as  they  please  with  their  lukewarmness, 
the  conduct  of  the  latter  is  undoubtedly  more  agreeable  to 
reason  and  the  law  of  nations.  True  zeal  applies  itself  to 
the  task  of  making  a  holy  religion  flourish  in  the  countries 

242 


OF   THE   RIGHT   TO    SECURITY,    ETC.  159 

-where  it  is  received,  and  of  rendering  it  useful  to  the  man-  BOOK  u. 
ners  of  the  people  and  to  the  state :  and,  without  forestalling  CHAP.  IT. 
the  dispositions  of  Providence,  it  can  find  sufficient  employ- 
ment at  home,  until  an  invitation  come  from  foreign  nations, 
or  a  very  evident  commission  be  given  from  heaven,  to 
preach  that  religion  abroad.  Finally,  let  us  add,  that,  before 
we  can  lawfully  undertake  to  preach  a  particular  religion  to  the 
various  nations  of  the  earth,  we  must  ourselves  be  thoroughly 
convinced  of  its  truth  by  the  most  serious  examination. — 
"  What !  can  Christians  doubt  of  their  religion  ?"— The  Mo- 
hammedan entertains  no  doubt  of  his.  Be  ever  ready  to 
impart  your  knowledge, — simply  and  sincerely  expose  the 
principles  of  your  belief  to  those  who  are  desirous  of  hearing 
you :  instruct  them,  convince  them  by  evidence,  but  seek  not 
to  hurry  them  away  with  the  fire  of  enthusiasm.  It  is  a  suffi- 
cient charge  on  each  of  us,  to  be  responsible  for  his  own  con- 
science.— Thus,  neither  will  the  light  of  knowledge  be  refused 
to  any  who  wish  to  receive  it,  nor  will  a  turbulent  zeal  disturb 
the  peace  of  nations. 

When  a  religion  is  persecuted  in  one  country,  foreign  na-  §  62.  What 
tions  who  profess  it  may  intercede  for  their  brethren :  but a  sovereign 
this  is  all  they  can  lawfully  do,  unless  the  persecution  be  car-  ^u^°0J-n 
ried  to  an  intolerable  excess  :  then,  indeed,  it  becomes  a  case  tnose  wno 
of  manifest  tyranny,  in  opposition  to  which  all  nations  are  profess  his 
allowed  to  assist  an  unhappy  people  (§  56).     A  regard  to  religion  in 
their  own  safety  may  also  authorize  them  to  undertake  the  gt"°*her 
defence  of  the  persecuted  sufferers.     A  king  of  France  re- 
plied to  the  ambassadors  who  solicited  him  to  suffer  his  sub- 
jects of  the  reformed  religion  to  live  in  peace,  "that  he  was 
master  in  his  own  kingdom."     But  the  Protestant  sovereigns, 
who  saw  a  general  conspiracy  of  the  Catholics  obstinately  [  160  ] 
bent  on  their  destruction,  were  so  far  masters  on  their  side 
as  to  be  at  liberty  to  give  assistance  to  a  body  of  men  who 
might    strengthen  their  party,  and  help  them  to  preserve 
themselves  from  the  ruin  with  which  they  were  threatened. 
All  distinctions  of  states  and  nations  are  to  be  disregarded, 
when  there  is  question  of  forming  a  coalition  against  a  set 
of  madmen  who  would  exterminate  all  those  that  do  not  im- 
plicitly receive  their  doctrines. 


248 


160  OE  THE   OBSERVANCE   OF  JUSTICE  BETWEEN  NATIONS. 

BOOK  II. 
CHAP.  V. 

CHAP.  V. 

OF   THE   OBSERVANCE   OF  JUSTICE   BETWEEN  NATIONS. 

§  63.  lye-  JUSTICE  '  is  the  basis  of  all  society,  the  sure  bond  of  all 
cesslty°ftlie  commerce.  Human  society,  far  from  being  an  intercourse 
of^u&tLce°in  °^  assistance  and  good  offices,  would  be  no  longer  any  thing 
human  so-  but  a  vast  scene  of  robbery,  if  no  respect  were  paid  to  this 
ciety.  virtue,  which  secures  to  every  one  his  own.  It  is  still  more 

necessary  between  nations  than  between  individuals  ;  because 
injustice  produces  more  dreadful  consequences  in  the  quarrels 
of  these  powerful  bodies  politic,  and  it  is  more  difficult  to 
obtain  redress.  The  obligation  imposed  on  all  men  to  be  just 
is  easily  demonstrated  from  the  law  of  nature.  We  here  take 
that  obligation  for  granted  (as  being  sufficiently  known),  and 
content  ourselves  with  observing  that  it  is  not  only  indispen- 
sably binding  on  nations  (Prelim.  §  5),  but  even  still  more 
sacred  with  respect  to  them,  from  the  importance  of  its  con- 
sequences. 

§  64.  Obli-  All  nations  are  therefore  under  a  strict  obligation  to  culti- 
gatkm  of  all  Vate  justice  towards  each  other,  to  observe  it  scrupulously, 
cultivate0  anc^  carefu^y  to  abstain  from  every  thing  that  may  violate  it. 
and  observe  Each  ought  to  render  to  the  others  what  belongs  to  them,  to 
justice.  respect  their  rights,  and  to  leave  them  in  the  peaceable  en- 
joyment of  them.* 

§  65.  Right      From  this  indispensable  obligation  which  nature  imposes 

of  refusing   on  nations,  as  well  as  from  those  obligations  which  each  na- 

in'ustice1 10  tion  owes  to  nerself5  results  the  right  of  every  state  not  to 

suffer  any  of  her  rights  to  be  taken  away,  or  any  thing  which 

lawfully  belongs  to  her :  for,  in  opposing  this,  she  only  acts 

in  conformity  to  all  her  duties ;  and  therein  consists  the  right 

[  161  ]  (§  49). 

§  66.    This      This  right  is  a  perfect  one, — that  is  to  say,  it  is  accompa- 
right  is  a      nie(j  with  the  right  of  using  force  in  order  to  assert  it.     In 
pe  «     one.  yajn  wou](j  nature  give  us  a  right  to  refuse  submitting  to  in- 
justice,— in  vain  would  she  oblige  others  to  be  just  in  their 
dealings  with  us,  if  we  could  not  lawfully  make  use  of  force, 

*  Might  not  this  duty  be  extended  be  executed  on  requisition  made  by  those 
to  the  execution  of  sentences  passed  in  parliaments.  But  I  do  not  know  that 
other  countries  according  to  the  neces-  the  tribunals  of  this  country  act  in  the 
sary  and  usual  forms  ? — On  this  subject  same  manner  with  respect  to  sentences 
M.  Van  Bouningin  wrote  as  follows  to  passed  in  Holland  ;  and,  if  they  do  not, 
M.  De  Witt,  Oct.  15,  1666 :  «  By  what  an  agreement  might  be  made,  that 
the  courts  of  Holland  have  decreed  in  the  sentences  passed  on  either  side  against 
affair  of  one  Koningh,  of  Rotterdam,  I  subjects  of  the  other  state  shall  only 
see  they  suppose  that  ever,y  judgment  take  effect  on  such  property  as  the  con- 
pronounced  by  the  parliaments  of  demned  party  is  found  to  possess  in 
France  against  the  inhabitants  of  Hoi-  the  state  where  the  sentence  has  been 
land  injudicio  contradictor  io,  ought  to  given." 
244 


CONCERN  OF  A  NATION  IN  THE  ACTIONS  OF  HER  CITIZENS.  161 

when  they  refused  to  discharge  this  duty.  The  just  would  BOOK  n. 
lie  at  the  mercy  of  avarice  and  injustice,  and  all  their  rights  CHAP- Y- 
would  soon  become  useless. 

From  the  foregoing  right  arise,  as  distinct  branches,  first,  §  67.  It  pro- 
the  right  of  a  just  defence,  which  belongs  to  every  nation, —  ducesl.The 
or  the  right  of  making  use  of  force  against  whoever  attacks  jgj£ of 
her  and  her  rights.     This  is  the  foundation  of  defensive  war. 

Secondly,  the  right  to  obtain  justice  by  force,  if  we  cannot  §  68-  2-The 
obtain  it  otherwise,  or  to  pursue  our  right  by  force  of  arms.  ^J^°!J|£in8 
This  is  the  foundation  of  offensive  war.  justice. 

An  intentional  act  of  injustice  is  undoubtedly  an  injury.  §  69.  The 
We  have,  then,  a  right  to  punish  it,  as  we  have  shown  above,  right  of  pun- 
in  speaking  of  injuries  in  general  (§  52).     The  right  of  refus- ^ceng  mjus" 
ing  to  suffer  injustice  is  a  branch  of  the  right  to  security. 

Let  us  apply  to  the  unjust  what  we  have  said  above  (§  53)  §  70.  Right 
of  a  mischievous  nation.     If  there  were  a  people  who  made  °/  ^  na; 
open  profession  of  trampling  justice  under  foot, — who  ^e- ^"st^|^nst 
spised  and  violated  the  rights  of  others  whenever  they  found  openly  de- 
an opportunity, — the  interest  of  human  society  would  author-  spises  jus- 
ize  all  the  other  nations  to  form  a  confederacy  in  order  to  hum- tice- 
ble  and  chastise  the  delinquents.     We  do  not  here  forget  the 
maxim  established  in  our  Preliminaries,  that  it  does  not  be- 
long to  nations  to  usurp  the  power  of  being  judges  of  each 
other.      In  particular   cases,  where   there  is   room  for  (the 
smallest  doubt,  it  ought  to  be  supposed  that  each  of  the  parties 
may  have  some  right :  and  the  injustice  of  the  party  that  has 
committed  the  injury  may  proceed  from  error,  and  not  from 
a  general  contempt  of  justice.     But  if,  by  her  constant  max- 
ims, and  by  the  whole  tenor  of  her  conduct,  a  nation  evidently 
proves  herself  to  be  actuated  by  that  mischievous  disposition, 
— if  she  regards  no  right  as  sacred, — the  safety  of  the  human 
race  requires  that  she  should  be  repressed.     To  form  and  sup- 
port an  unjust  pretension,  is  only  doing  an  injury  to  the  party 
whose  interests  are  affected  by  that  pretension ;  but,  to  de- 
spise justice  in  general,  is  doing  an  injury  to  all  nations. 


CHAP.  VI. 

OF   THE    CONCERN  A  NATION   MAY   HAVE   IN   THE   ACTIONS   OF    CHAP-  YI-_ 
HER    CITIZENS. 

WE  have  seen  in  the  preceding  chapters  what  are  the  com-  §  71.    The 
mon  duties  of  nations  towards  each  other, — how  they  ought  sovereign 
mutually  to  respect  each  other,  and  to  abstain  from  all  injury  °"jj£  JJJ0" 
and  all  offence, — and  how  justice  and  equity  ought  to  reign  injuries  of 
between  them  in  their  whole  conduct.     But  hitherto  we  have  the  state, 
only  considered  the  actions  of  the  body  of  the  nation,  of  the  *"*& to  Pr°- 

V2  245 


161  CONCERN   OF   A   NATION 

BOOK  ii-  state,  of  the  sovereign.  Private  persons  who  are  memhers 
CHAP.  YI.  Of  one  nation,  may  offend  and  ill-treat  the  citizens  of  another, 
tect  the  citi-  and  may  injure  a  foreign  sovereign : — it  remains  for  us  to 
zens.  examine  what  share  a  state  may  have  in  the  actions  of  her 

L  1"2  ]  citizens,  and  what  are  the  rights  and  obligations  of  sovereigns 
in  this  respect. 

Whoever  offends  the  state,v  injures  its  rights,  disturbs  its 
tranquillity,  or  does  it  a  prejudice  in  any  manner  whatsoever, 
declares  himself  its  enemy,  and  exposes  himself  to  be  justly 
punished  for  it.  Whoever  uses  a  citizen  ill,  indirectly  offends 
the  state,  which  is  bound  to  protect  this  citizen ;  and  the 
sovereign  of  the  latter  should  avenge  his  wrongs,  punish  the 
aggressor,  and,  if  possible,  oblige  him  to  make  full  repara- 
tion ;  since  otherwise  the  citizen  would  not  obtain  the  great 
end  of  the  civil  association,  which  is,  safety. 

§  72.  He  But,  on  the  other  hand,  the  nation  or  the  sovereign  ought 
ought  not  to  not  to  suffer  the  citizens  to  do  an  injury  to  the  subjects  of  an- 

suSTto  other  state'  much  less  to  offend  that  state  itself :  and  this>  not 
offend  other  onty  because  no  sovereign  ought  to  permit  those  who  are 
nations  or  under  his  command  to  violate  the  precepts  of  the  law  of  na- 
their  citi-  ture,  which  forbids  all  injuries, — but  also  because  nations 
zens.  ought  mutually  to  respect  each  other,  to  abstain  from  all 

offence,  from  all  injury,  from  all  wrong, — in  a  word,  from 
every  thing  that  may  be  of  prejudice  to  others.     If  a  sove- 
reign, who  might  keep  his  subjects  within  the  rules  of  justice 
and  peace,  suffers  them  to  injure  a  foreign  nation  either  in 
its  body  or  its  members,  he  does  no  less  injury  to  that  nation 
than  if  he  injured  it  himself.     In  short,  the  safety  of  the 
state,  and  that  of  human  society,  requires  this  attention  from 
every  sovereign.     If  you  let  loose  the  reins  to  your  subjects 
against  foreign  nations,  these  will  behave  in  the  same  manner 
to  you ;  and,  instead  of  that  friendly  intercourse  which  nature 
has  established  between  all  men,  we  shall  see  nothing  but  one 
vast  and  dreadful  scene  of  plunder  between  nation  and  nation. 
§  73.  The        However,  as  it  is  impossible  for  the  best  regulated  state, 
acts  of  indi-  or  for  the  most  vigilant  and  absolute  sovereign,  to  model  at 
^tutaolsb^re   his  pleasure  all  the  actions  of  his  subjects,  and  to  confine 
imputed  to  them  on  every  occasion  to  the  most  exact  obedience,  it  would 
the  nation,   be  unjust  to  impute  to  the  nation  or  the  sovereign  every  fault 
committed  by  the  citizens.     We  ought  not,  then,  to  say,  in 
general,  that  we  have  received  an  injury  from  a  nation  because 
we  have  received  it  from  one  of  its  members. 

§  74.  unless  But,  if  a  nation  or  its  chief  approves  and  ratifies  the  act 
it  approves  of  the  individual,  it  then  becomes  a  public  concern ;  and  the 
or  ratifies  injure(j  party  is  to  consider  the  nation  as  the  real  author  of 
the  injury,  of  which  the  citizen  was  perhaps  only  the  instru- 
§75.  Con-  ment. 

obstrted'b  If  the  offended  state  has  in  her  Power  tne  individual  who 
^^offended  nas  done  the  injury,  she  may  without  scruple  bring  him  to 
party.  justice  and  punish  him.  If  he  has  escaped  and  returned  to 


IN   THE   ACTIONS    OP   HER   CITIZENS.  162 

his  own  country,  she  ought  to  apply  to  his  sovereign  to  have   BOOK  n. 
justice  done  in  the  case.  CHAr-  ™- 

And,  since  the  latter  ought  not  to  suffer  his  subjects  to  [  163  ] 
molest  the  subjects  of  other  states,  or  to  do  them  an  injury,  §  76.  Duty 
much  less  to  give  open,  audacious  offence  to  foreign  powers,  of  the  ag- 
he  ought  to  compel  the  transgressor  to  make  reparation  for  i£esfor's  s°- 
the  damage  or  injury,  if  possible,  or  to  inflict  on  him  an  ex- 
emplary punishment ;  or,  finally,  according  the  nature  and  cir- 
cumstances of  the  case,  to  deliver  him  up  to  the  offended  state, 
to  be  there  brought  to  justice.  This  is  pretty  generally  ob- 
served with  respect  to  great  crimes,  which  are  equally  con- 
trary to  the  laws  and  safety  of  all  nations.  Assassins,  incen- 
diaries, and  robbers,  are  seized  everywhere,  at  the  desire  of 
the  sovereign  in  whose  territories  the  crime  was  committed, 
and  are  delivered  up  to  his  justice.  The  matter  is  carried 
still  farther  in  states  that  are  more  closely  connected  by  friend- 
ship and  good  neighbourhood.  Even  in  cases  of  ordinary 
trangressions,  which  are  only  subjects  of  civil  prosecution, 
either  with  a  view  to  the  recovery  of  damages,  or  the  inflic- 
tion of  a  slight  civil  punishment,  the  subjects  of  two  neigh- 
bouring states  are  reciprocally  obliged  to  appear  before  the 
magistrate  of  the  place  where  they  are  accused  of  having 
failed  in  their  duty.  Upon  a  requisition  of  that  magistrate, 
called  Letters  Rogatory,  they  are  summoned  in  due  form  by 
their  own  magistrates,  and  obliged  to  appear.  An  admirable 
institution,  by  means  of  which  many  neighbouring  states  live 
together  in  peace,  and  seem  to  form  only  one  republic  !  This 
is  in  force  throughout  all  Switzerland.  As  soon  as  the  Let- 
ters Rogatory  are  issued  in  form,  the  superior  of  the  accused 
is  bound  to  enforce  them.  It  belongs  not  to  him  to  examine 
whether  the  accusation  be  true  or  false :  he  is  to  presume  on 
the  justice  of  his  neighbour,  and  not  suffer  any  doubts  on  his 
own  part  to  impair  an  institution  so  well  calculated  to  pre- 
serve harmony  and  good  understanding  between  the  states. 
However,  if  by  constant  experience  he  should  find  that  his 
subjects  are  oppressed  by  the  neighbouring  magistrates  who 
summon  them  before  their  tribunals,  it  would  undoubtedly  be 
right  in  him  to  reflect  on  the  protection  due  to  his  people, 
and  to  refuse  the  rogatories  till  satisfaction  were  given  for  the 
abuses  committed,  and  proper  steps  taken  to  prevent  a  repe- 
tition of  them.  But,  in  such  case,  it  would  be  his  duty  to 
allege  his  reasons,  and  set  them  forth  in  the  clearest  point 
of  view. 

The  sovereign  who  refuses  to  cause  reparation  to  be  made  §  77.  If  he 
for  the  damage  done  by  his  subject,  or  to  punish  the  offender,  refuses  jus- 
or,  finally,  to  deliver  _  him  up,  renders  himself  in  some  mea-  ^^^ 
sure  an  accomplice  in  the  injury,  and  becomes  responsible  party  jn  thr 
for  it.     But,  if  he  delivers  up  either  the  property  of  the  fault  and 
offender,  as  an  indemnification,  in  cases  that  will  admit  of  offence, 
pecuniary  compensation — or  his  person,  in  order  that  he  may 

247 


163  EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 

BOOK  ii.    suffer  the  punishment  due  to  his  crime,  the  offended  party 
CHAP,  vi.   J^  no  further  demand  on  him.     King  Demetrius,  having  de- 
[  164  ]  livered  to  the  Romans  those  who  had  killed  their  ambassador, 
the  senate  sent  them  back,  resolving  to  reserve  to  themselves 
the  liberty  of  punishing  that  crime,  by  avenging  it  on  the 
king  himself,  or  on  his  dominions.*     If  this  was  really  the 
case,  and  if  the  king  had  no  share  in  the  murder  of  the  Ro- 
man ambassador,  the  conduct  vof  the  senate  was  highly  unjust, 
and  only  worthy  of  men  who  sought  but  a  pretext  to  cover 
their  ambitious  enterprises. 

other  casein      Finally,  there  is  another  case  where  the  nation  in  general 
which  the     'IS  gu^ty  of  the  crimes  of  its  members.     That  is,  when,  by 
nation  is      its  manners,  and  by  the  maxims  of  its  government,  it  accus- 
guilty  of  the  toms  and  authorizes  its  citizens  indiscriminately  to  plunder 
thTcitizens  anc^  ma^rea*;  foreigners,  to  make  inroads  into  the  neighbour- 
'  ing  countries,  &c.     Thus,  the  nation  of  the  Usbecks  is  guilty 
of  all  the  robberies  committed  by  the  individuals  of  which  it 
is  composed.     The  princes  whose  subjects  are  robbed  and 
massacred,  and  whose  lands  are  infested  by  those  robbers,  may 
justly  level  their  vengeance  against  the  nation  at  large.  (106) 
Nay,  more ;  all  nations  have  a  right  to  enter  into  a  league 
against  such  a  people,  to  repress  them,  and  to  treat  them 
as  the  common  enemies  of  the  human  race.     The  Christian 
nations  would   be   no  less  justifiable   in  forming   a   confe- 
deracy against  the  states  of  Barbary,  in   order  to  destroy 
those  haunts  of  pirates,  Avith  whom  the  love  of  plunder,  or 
the  fear  of  just  punishment,  is  the  only  rule  of  peace  and 
war.     But  these  piratical  adventurers  are  wise  enough  to  re- 
spect those  who  are  most  able  to  chastise  them ;  and  the  na- 
tions that  are  able  to  keep  the  avenues  of  a  rich  branch  of 
commerce  open  for  themselves,  are  not  sorry  to  see  them  shut 
against  others. 


CHAP.  VII. 

EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 


§  79.  Gene-     \\TE  have  explained,  in  Chap.  XVIII.  Book  I.,  how  a  na- 
f  ^on  ta^es  Possess^on  °^  a  country,  and  at  the  same  time  gains 
'  possession  of  the  domain  and  government  therof.     That  coun- 
try, with  every  thing  included  in  it,  becomes  the  property  of 
the  nation  in  general.     Let  us  now  see  what  are  the  effects 
of  this  property,  with  respect  to  other  nations.     The  full  do- 
main is  necessarily  a  peculiar  and  exclusive  right ;  for,  if  I 

*  See  Polybius,  quoted  by  Barbey-         (106)  It  was  on  this  ground  that  the 
rac,  in  his  notes  on  Grotius,  book  iii.  French  nation  so  recently  took  posses- 
chap,  xxiv.  §  vii.  sion  of  Algiers.-— C. 
248 


EFFECTS   OF   THE   DOMAIN    BETWEEN   NATIONS.  164 

have  a  full  right  to  dispose  of  a  thing  as  I  please,  it  thence    BOOK  n- 
follows  that  others  have  no  right  to  it  at  all,  since,  if  they  OHAP'  Y"' 
had  any,  I  could  not  freely  dispose  of  it.     The  private  domain 
of  the  citizens  may  be  limited  and  restrained  in  several  ways 
by  the  laws  of  the  state,  and  it  always  is  so  by  the  eminent 
domain  of  the  sovereign ;  but  the  general  domain  of  the  na- 
tion is  full  and  absolute,  since  there  exists  no  authority  upon     • 
earth  "by  which  it  can  be  limited :  it  therefore  excludes  all 
right  on  the  part  of  foreigners.     And,  as  the  rights  of  a  nation 
ought  to  be  respected  by  all  others  (§  64),  none  can  form  any  [  165  ] 
pretensions  to  the  country  which  belongs  to  that  nation,  nor 
ought  to  dispose  of  it  without  her  consent,  any  more  than  of 
the  things  contained  in  the  country. 

The  domiin  of  the  nation  extends  to  every  thing  she  pos-  §  so.  What 
sesses  by  a  just  title  :  it  comprehends  her  ancient  and  original  j^JJfj^ 
possessions,  and  all  her  acquisitions  made  by  means  which  are  ^"domain 
just  in  themselves,  or  admitted  as  such  among  nations, — con-  Of  a  nation, 
cessions,  purchases,  conquests  made  in  the  regular  war,  &c. 
And  by  her  possessions  we  ought  not  only  to  understand  her 
territories,  but  all  the  rights  she  enjoys. 

Even  the  property  of  the  individuals  is,  in  the  aggregate,  §  81.    The 
to  be  considered  as  the  property  of  the  nation,  with  respect  property  of 
to  other  states.     It,  in  some  sort,  really  belongs  to  her,  from  [g  ^g1™"8 
the  right  she  has  over  the  property  of  her  citizens,  because  perty  of  the 
it  constitutes  a  part  of  the  sum  total  of  her  riches,  and  aug-  nation,  with 
nients  her  power.     She  is  interested  in  that  property  by  her  respect  to 
obligation  to  protect  all  her  members.     In  short,  it  cannot  be  ^"j 
otherwise,  since  nations  act  and  treat  together  as  bodies  in 
their  quality  of  political  societies,  and  are  considered  as  so 
many  moral  persons.     All  those  who  form  a  society,  a  nation 
being  considered  by  foreign  nations  as  constituting  only  one 
whole,  one  single  person, — all  their  wealth  together  can  only 
be  considered  as  the  wealth  of  that  same  person.     And  this  is 
so  true,  that  each  political  society  may,  if  it  pleases,  establish 
within  itself  a  community  of  goods,  as  Campanella  did  in  his 
republic  of  the  sun.     Others  will  not  inquire  what  it  does  in 
this  respect:  its  domestic  regulations  make  no  change  in  its 
rights  with  respect  to  foreigners  nor  in  the  manner  in  which 
they  ought  to  consider  the  aggregate  of  its  property,  in  what 
way  soever  it  is  possessed. 

By  an  immediate  consequence  of  this  principle,  if  one  na-  §  82.  A  con- 
tion  has  a  right  to  any  part  of  the  property  of  another,  she  sequence  of 
has  an  indiscriminate  right  to  the  property  of  the  citizens  of  ^  pnncl" 
the  latter  nation  until  the  debt  be  discharged.     This  maxim  p  e 
is  of  great  use,  as  shall  hereafter  be  shown.  §  83.  Con- 

The  general  domain  of  the  nation  over  the  lands  she  inhabits  nection  of 
is  naturally  connected  with  the  empire ;  for,  in  establishing the  Domain 
herself  in  a  vacant  country,  the  nation  certainly  does  not  in-  j^^JJ" 
tend  to  possess  it  in  subjection  to  any  other  power:  and,  canthe  sove. 
we  suppose  an  independent  nation  not  vested  with  the  absolute  reigmv. 

32  249 


165  EFFECTS    OF   THE    DOMAIN   BETWEEN   NATIONS. 

BOOK  ii.  command  in  her  domestic  concerns  ?  Thus,  we  have  already 
CHAP.  YII.  observed  (Book  I,  §  205),  that,  in  taking  possession  cf  a 
country,  the  nation  is  presumed  to  take  possession  of  its 
government  at  the  same  time.  We  shall  here  proceed  further, 
and  show  the  natural  connection  of  these  two  rights  in  in  in- 
dependent nation.  How  could  she  govern  herself  at  h^r  own 
•  pleasure  in  the  country  she  inhabits,  if  she  cannot  truly  and 
absolutely  dispose  of  it  ?  A^id  how  could  she  have  the  full 
and  absolute  domain  of  a  place  where  she  has  not  the  command  ? 
Another's  sovereignty,  and  the  rights  it  comprehends,  must 
deprive  her  of  the  free  disposal  of  that  place.  Add  to  this 
[  166  ]  the  eminent  domain  which  constitutes  a  part  of  the  sovereignty 
(Book  I,  §  244),  and  you  will  the  better  perceive  the  intimate 
connection  existing  between  the  domain  and  the  sovereignty 
of  the  nation.  And,  accordingly,  what  is  called  the  high 
domain,  which  is  nothing  but  the  domain  of  the  body  of  the 
nation,  or  of  the  sovereign  who  represents  it,  is  everywhere 
considered  as  inseparable  from  the  sovereignty.  The  useful 
domain,  or  the  domain  confined  to  the  rights  that  may  belong 
to  an  individual  in  the  state,  may  be  separated  from  the 
sovereignty:  and  nothing  prevents  the  possibility  of  its  be- 
longing to  a  nation  in  places  that  are  not  under  her  juris- 
diction. Thus,  many  sovereigns  have  fiefs,  and  other  pos- 
sessions, in  the  territories  of  another  prince :  in  these  cases 
they  possess  them  in  the  manner  of  private  individuals. 
§  84.  Juris-  The  sovereignty  united  to  the  domain  establishes  the  ju- 
diction.  risdiction  of  the  nation  in  her  territories,  or  the  country  that 
belongs  to  her.  It  is  her  province,  or  that  of  her  sovereign, 
to  exercise  justice  in  all  the  places  under  her  jurisdiction,  to 
take  cognisance  of  the  crimes  committed,  and  the  differences 
that  arise  in  the  country. 

Other  nations  ought  to  respect  this  right.  And,  as  the 
administration  of  justice  necessarily  requires  that  every  de- 
finitive sentence,  regularly  pronounced,  be  esteemed  just,  and 
executed  as  such, — when  once  a  cause  in  which  foreigners  are 
interested  has  been  decided  in  form,  the  sovereign  of  the  de- 
fendants cannot  hear  their  complaints.  To  undertake  to  ex- 
amine the  justice  of  a  definitive  sentence  is  an  attack  on  the 
jurisdiction  of  him  who  has  passed  it.  The  prince,  therefore, 
ought  not  to  interfere  in  the  causes  of  his  subjects  in  foreign 
countries,  and  grant  them  his  protection,  excepting  in  cases 
where  justice  is  refused,  or  palpable  and  evident  injustice 
done,  or  rules  and  forms  openly  violated,  or,  finally,  an  odious 
distinction  made,  to  the  prejudice  of  his  subjects,  or  of  fo- 
reigners in  general.  The  British  court  established  this  maxim, 
with  great  strength  of  evidence,  on  occasion  of  the  Prussian 
vessels  seized  and  declared  lawful  prizes  during  the  last  war.* 

*  See  the  report  made  to  the  King     Murray.     It  is  an  excellent  piece  on 
of  Great  Britain  by  Sir  George  Lee,     the  law  of  nations. 
Dr.  Paul,  Sir  Dudley  Ryder,  and  Mr. 
250 


EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 


166 


What  is  here  said  has  no  relation  to  the  merits  of  that  par-    BOOK  H. 
ticular  cause,  since  they  must  depend  on  facts.  CHAP,  yn. 

In  consequence  of  these  rights  of  jurisdiction,  the  decisions  §  85.  Effects 
made  by  the  judge  of  the  place  within  the  extent  of  his  power  °f tlie  Juns' 
ought  to  be  respected,  and  to  take  effect  even  in  foreign  coun-  f<^e-^  m 
tries.     For  instance,  it  belongs  to  the  domestic  judge  to  nomi-  countries, 
nate  tutors  and  guardians  for  minors  and  idiots.     The  law  of  (107) 


(107)  This  principle  appears  to  be  now 
settled  by  the  law  and  practice  of  na- 
tions; but,  nevertheless,  subject  to  cer- 
tain general  wholesome  rules,  essential 
to  be  adhered  to  in  order  to  prevent  the 
effect  of  partial  and  unjust  sentences 
and  decisions.  The  respected  decisions 
which  have  given  rise  to  discussion, 
have  principally  been  in  foreign  Courts 
of  Admiralty,  or  Prize  Courts  ;  and  the 
law  respecting  them  has  been  better 
settled  by  the  decisions  of  Sir  W.  Scott 
and  Sir  J.  Nichol,  so  universally  re- 
spected, than  at  any  other  period  of  his- 
tory. By  the  long-established  doctrine 
in  England,  and  by  the  more  recent 
general  practice  of  European  nations, 
a  sentence  of  condemnation,  pronounced 
in  a  court  of  competent  jurisdiction,  is 
essential,  completely  to  transfer  the 
legal  interest  in  property  captured  as 
prize,  (per  Sir  W.  Scott,  in  The  Flail 
Oyen,  1  Rob.  Rep.  115).  And,  in  order 
to  constitute  a  legal  prize-court  to  pro- 
nounce a  binding  sentence,  by  the  law 
of  nations,  certain  requisites  are  es- 
sential. The  celebrated  report  drawn 
up  by  Lord  Mansfield  and  signed  by 
him  and  other  very  eminent  personages 
as  their  opinion,  contains  much  of  the 
law  of  nations  upon  the  subject.  (See 
Postle.  Universal  Diet,  of  Trade  and 
Commerce,  article  Silesia,  4th  ed. ;  and 
1  Col.  Jurid.  133;  and  see  Undo  v. 
Rodney,  2  Doug.  613,  and  Le  Caux  v. 
Eden,  id.  594.)  One  rule  was  there 
laid  down,  that  the  condemnation  must 
have  been  pronounced  by  a  court  be- 
longing to  the  belligerent  country.  (See 
id.,  and  Havelock  v.  Rockwood,  Atche- 
son's  Rep.  7  &  8 ;  8  Term  Rep.  288 ; 
1  Col.  Jurid.  130.)  Secondly,  the  court 
must  have,  at  the  time  it  pronounced 
sentence  of  condemnation,  actually  sat 
in  the  country  to  which  it  belonged,  and 
not  within  the  dominions  of  any  foreign 
prince,  whether  neutral  or  an  ally  ;  for, 
otherwise,  a  captor  might  have  innu- 
merable seats  of  war,  and  elude  the 
fair  chance  of  recaption  whilst  the 
vessel  or  property  was  in  progress 
towards  a  proper  condemning  port 


(Havelock  v.  Rockicood,  Atcheson's  Rep. 
8  &  49;  The  Flad  Oyen,  1  Rob.  Rep. 
115,  8  Term  Rep.  270,  in  notes.) 
Thirdly,  the  ship,  or  other  property 
condemned  as  prize,  must,  at  the  time 
of  condemnation,  in  general,  be  actually 
in  the  country  where  the  sentence  was 
pronounced.— Per  Sir  W.  Scott,  in  The 
Flad  Oyen,  1  Rob.  Rep.  115,  where  see 
some  exceptions ;  and  see  also  Havelock 
v.  Rockivood,  Atch.  Rep.  49 ;  {Jolly  v. 
The  Neptune,  2  Pet.  Adm.  Dec.  345 ; 
Findlay  v.  The  William,  1  Pet.  Adm. 
Dec.  12.}  See  other  cases  in  1  Har- 
rison's Index,  pp.  687  to  689. 

By  the  marine  law  of  England,  as 
practised  in  the  High  Court  of  Admi- 
ralty, it  was  formerly  held  that  there 
was  no  change  of  property  in  case  of 
recaption,  so  as  to  bar  the  original 
owner  in  favour  of  a  vendee  or  recaptor, 
until  there  had  been  a  sentence  of  con- 
demnation (2  Burr.  696 ;  Undo  v.  Rod- 
ney 4-  another,  2  Douglas,  616 ;  1  Rob. 
Rep.  139) ;  and  now  by  statutes  13  Geo. 

2,  c.  4,  s.  18,  and  29  Geo.  2,  c.  34,  s. 
24,  in  case  of  recapture,  the  jus  postli- 
minii  is  extended,   and    continues    for 
ever,  upon  payment  of  certain  salvage, 
which  is  regulated  and  fixed  by  33  Geo. 

3,  c.  66,  s.  42.      (See   2   Burr.    696, 
1209,  &c.)     And,  when   the   private 
property  of  an  allied  sovereign  is  recap- 
tured from  the  enemy,  it  is  to  be  re- 
stored to  him  free  from  salvage,  or  even 
expense — (Alexander,  2  Dodson's  Rep. 
37).     With  respect   to   the   effect  in 
England  of  foreign  judgments,  decrees, 
and  sentences,  the  present  general  rule 
is,  that,  if  they  were  decided  in  a  fo- 
reign court,  of  competent  jurisdiction, 
they  shall  be  admitted  as  prima  facie 
valid  and  binding  on  the  parties  in  all 
other  countries,  but  not  conclusively  so. 
(See  the  cases  referred  to  in  note  (a) 
to  Naoelli  v.  Ross,  2  Bam.  &  Adolph. 
765;  and  see  Frankland  v.  M'Gusty, 
Knapp's     Rep.     295;    1    Ves.     159; 
2  Strange,  733 ;  2  Bing.  380 ;  3  Bing. 
353 ;  4  Barn.  &  Cres.  637 ;  Tarleton  v. 
Tarleton,  4  Maule  &  Sel.  20 ;  Kennedy 
v.  Cassilis,  2  Swanst  325) ;  fCalhoun 

251 


166 


EFFECTS    OF   THE   DOMAIN    BETWEEN   NATIONS. 


BOOK  n.    nations,  which  has  an  eye  to  the  common  advantage  and  the 
CHAP.  TII.  g00(j  harmony  of  nations,  requires,  therefore,  that  such  nomi- 
nation of  a  tutor  or  guardian  be  valid,  and  acknowledged  in 
all  countries  where  the  pupil  may  have  any  concerns.     Use 


v.  Fitzsimons,  1  Bin.  Rep.  293;  Cal- 
breath  v.  Gracy,  1  Wash.  C.  C.  Rep. 
219.}  And  it  was  held,  that  a  decree^ 
of  the  sale  of  a  ship  made  in  an  Ame- 
rican court  of  competent  jurisdiction, 
pending  war  with  this  country,  was  to 
be  received  in  the  Court  of  Admiralty 
in  England  as  legally  operative.  (The 
Experiments,  2  Dods.  Rep.  46,  47) ; 
^Thirty,  &c.  v.  Boyle,  9  Cranch,  191}. 
So,  a  marriage,  established  by  the  sen- 
tence of  a  foreign  court  having  proper 
jurisdiction,  has  even  been  considered 
as  conclusive  by  the  law  of  nations 
(Roach  v.  Gavan,  1  Ves.  sen.  159); 
{Story,  Conf.  Laws,  p.  103,  ed.  1834} ; 
and  it  was  laid  down  by  De  Grey,  C.  J. 
that  the  judgment  of  a  court  of  com- 
petent jurisdiction  directly  upon  a  point, 
is,  as  a  plea,  a  bar,  or,  as  evidence,  con- 
clusive, between  the  same  parties  upon 
the  same  matter  directly  in  question 
in  another  court.  (See  Duchess  of  King- 
ston's case,  20  Howcll's  State  Trials, 
538 ;  and  see  Bui.  N.  Pri.  244 ;  Phillips 
v.  Hunter,  2  Hen.  Bla.  402,  per  Eyre, 
C.  J. ;  and  see,  as  to  that  point,  1  Phil- 
lipps  on  Evid.  part  ii.  c.  2  and  3,  {vol. 
4,  Am.  ed.  1839,  New  York,  pages 
856  to  915}  ;  and  Starkie  on  Evid. 
part  ii.  §§  67, 68 ;  Frankland  \.M'Gus!y, 
I  Knapp's  Rep.  274;  Buchanan  v. 
Rucker,  1  Campb.  63,  180,  n.,  9  East, 
192,  S.  C.;  Sadler  v.  Robins,  id.  280, 
253 ;  Cavan  v.  Stewart,  1  Stark.  Rep. 
525 ;  and  see  1  Chitty's  Com.  L.  61  to 
65.)  But  such  foreign  decision  is  not 
conclusive  like  the  judgment  of  a  court 
of  record  in  England ;  and,  therefore, 
if  a  man  recover  a  judgment  or  sen- 
tence in  France  for  money  due  to  him, 
the  debt  must  be  considered  here  in 
England  as  only  a  simple  contract  debt, 
and  the  statute  of  limitations  will  run 
upon  it  (Dupleix  v.  De  Jioven,  2  Vem. 
540)  :  and  the  sentence  of  a  court  of 
summary  jurisdiction  in  France  can- 
not be  pleaded  to  a  bill  in  Chancery  in 
England  for  the  same  matter  (Gage  v. 
Bulkeky,  3  Atk.  215);  and  it  should 
seem,  that  even  a  recovery  of  a  judg- 
ment upon  a  bond  in  a  foreign  country 
is  no  bar  to  an  action  here  on  the 
same  bond.  (Foster  v.  Vassall,  3  Atk. 
589,  decided  upon  an  Irish  bond  and 
judgment  before  the  Union.)  It  is  true 
252 


that  there  are  cases  which  seem  to 
decide  that  such  foreign  judgments  are 
conclusive.  (See  Newland  v.  Horseman, 

1  Vern.  21.)     In  a  late  case  the  Vice- 
Chancellor  held  that  the  grounds  of  a 
foreign  judgment  cannot  be  reviewed 
in  the  courts  of  this  country,  and  that, 
therefore,  a  bill  for  a  discovery  and  a 
commission   to  examine  witnesses  in 
Antigua,  in  aid  of  the  parties'  defence 
to  an  action  brought  on  the  judgment  in 
this  country,  was  demurrable.    (Martin 
v.  Nicholls,  3  Simon's  Rep.  458,  cited 
by  Parke,  J.,  in  Bequest  v.  McCarthy, 

2  Barn.  &  Adol.  954 ;  see  also  Kennedy 
v.   Cassilis,  2  Swans.  326.)     But  that 
doctrine  is  not  sustainable,  and,  there- 
fore,   upon    an    appeal    to    the    Privy 
Council  from  a  decree  of  the  court  of 
justice  at  Demerara,  such  decree  being 
for  a  sum  of  money  alleged  to  be  due 
on  foreign  judgments,  was  reversed,  on 
the  ground  that  such  court  of  justice 
had  erroneously  determined  that  those 
judgments  were  conclusive  when  they 
were  only  prima  facie  evidence  of  the 
debt,  and  it  was  competent  to  the  ori' 
ginal  defendant  to  show  that  the  judg- 
ment   had  been  improperly  obtained. 
(Frankland  v.  M'Gusty   and    Others, 
Knapp's   Rep.  274.)     If,  therefore,  a 
foreign  judgment  appear  upon  the  face 
of  it  to  have  proceeded,  either  wholly 
in  the  defendant's  absence,  and  with- 
out his  having  had  any  opportunity  of 
knowing  of  the  proceeding,  and  defend- 
ing it,  and,  therefore,  manifestly  against 
justice ;  or  if  the  decision  has  manifestly 
proceeded  upon  false  premises,  or  in- 
adequate reasons,  or  upon  a  mistake  of 
local  or  foreign  law,  and  which  ought  to 
have   occasioned    a  different    decision 
(Novelli  v.  Rosf,  2  Barn.  &  Adol.  757)  ; 
or,  even  if  either  of  those  objections  be 
shown  by  extrinsic  evidence  (Frankland 
v.  M'Gusty,  Knapp's  Rep.  274  to  310; 
semble,  overruling  the  contrary  decision 
in  Martin  v.  Nicolls,  3  Simon's   Rep. 
458,  and  2  Swans.  326)  ;  then,  it  seems 
now  to  be  clearly  settled,  at  least  in 
England,  that  the  foreign  decision  will 
not  be   binding    or  valid — (id.   ibid.) 
Thus,  it  was  recently  held,  that,  where 
the  French  courts  had  in  their  decrees, 
on  the  face  of  them,  mistaken  the  law 
of  England  as  to  the  effect  of  a  cancel- 


EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 


166 


was  made  of  this  maxim  in  the  year  1672,  even  with  respect    BOOK  n. 
to  a  sovereign.     The  abbe  D' Orleans,  sovereign  prince  of  CHAP,  vii. 
Neufchatel,  in  Switzerland,  being  incapable  of  managing  his  [  167  ] 
own  affairs,  the  king  of  France  appointed,  as  his  guardian, 
his  mother,  the  duchess-dowager  of  Longueville.     The  duch- 
ess of  Nemours,  sister  to  that  prince,  laid  claim  to  the  guar- 
dianship for  the  principality  of  Neufchatel :  but  the  title  of 
the  duchess  of  Longueville  was  acknowledged  by  the  three 
estates  of  the  country.     Her  counsel  rested  her  cause  on  the 


lation  of  the  acceptance  of  a  bill  by  mis- 
take, and  had,  on  that  ground,  and  con- 
trary to  the  English  law,  adjudged  that 
the  defendant,  as  well  as  the  plaintiff, 
was  discharged  from  liability  by  such 
cancellation,  when,  according  to  the 
English  law,  they  remained  liable,  it 
was  held,  in  the  Court  of  King's  Bench 
in  England,  that  the  defendant  was 
still  liable  to  be  sued  by  the  plaintiff  for 
the  debt  in  respect  of  which  the  bills 
were  given,  notwithstanding  the  de- 
cree. (Novflli  v.  Rossi,  2  Barn.  &  Adolp. 
757.)  And,  upon  appeal  to  the  Privy- 
Council,  a  decree  of  the  court  of  jus- 
tice of  Demerara,  for  a  sum  of  money  •  had  left  property  there, 
due  upon  three  foreign  judgments  in  Forrest.) 
St.  Vincent's,  was  reversed,  on  the 
ground  that  those  judgments  had  been 
improperly  obtained.  (Frankland  v. 
M<  Gusty,  Knapp's  Rep.  274.)  So,  if  it 
appear  on  the  face  of  the  proceedings, 
or  otherwise,  that  the  defendant  in  the 
foreign  court  was  absent  from  the 
country  before  the  suit  was  commenced, 
the  judgment  against  him  may  be 
deemed  invalid.  (Buchanan  v.  Rucker, 
1  Campb.  63,  9  East  Rep.  192 ;  Cavan 
v.  Stewart,  1  Stark.  Rep.  525  ;  Frank- 
land  v.  M'Gusty,  Knapp's  Rep.  304.) 


the  Attorney-General  should  commu- 
nicate with  the  absent  party ;  it  was 
held,  that  such  law  was  not  so  con- 
trary to  national  justice  as  to  render 
void  a  judgment  obtained  against  a 
party  who  had  resided  within  the  juris- 
diction of  the  court  at  the  time  when 
the  cause  of  action  accrued,  but  had 
withdrawn  himself  before  the  proceed- 
ings were  commenced.  (Ibid. ;  Douglas 
v.  Forrest,  4  Bing.  686 ;  1  Moore  & 
Pay.  663.)  So,  horning,  in  Scotland 
(though  the  party  was  absent),  was 
held  legal,  where  the  defendant  had 
been  domiciled  in  that  country,  and 
(Douglas  v. 


In  England,  the  judgment  of  an 
English  court  of  record,  however  in- 
ferior, is  conclusive,  until  reversed  by 
writ  of  error  (1  Doug.  5),  and  even 
English  judgments  of  inferior  courts, 
not  of  record,  are  to  some  purposes 
conclusive,  unless  it  appear  upon  the 
face  of  the  proceedings  to  have  been  un- 
fairly obtained  (2  Burr.  1009;  2  Bing. 
216).  But  the  judgment  of  an  infe- 
rior court  may  be  controverted,  when 
it  appears  that  the  proceedings  have 
been  bad  in  law,  as,  where  a  summons 


But,  to  render  a  foreign  judgment  void,  and  attachment,  which  ought  to  have 
on  the  ground  that  it  is  contrary  to  the  been  successive  proceedings,  in  default 
law  of  the  country  where  it  was  given, 
or  to  reason  and  justice,  it  must  be 


shown  clearly  and  unequivocally  to  be 


of  appearance  to  the  former,  were  is- 
sued against  the  defendant  at  the  same 
time,  and  returnable  at  the  same  time, 


so.     (Becquet  v.  McCarthy,  3  Barn.  &     and  to  which  the  defendant  never  ap- 


Adolp.  951.)  But,  if  the  error  do  not 
appear  upon  the  face  of  the  proceeding 
and  the  party  complaining  of  the  judg- 


peared  (3  Barn.  &  Cres.  772  ;  5  Dowl. 
&  Ryl.  719,  S.  C.)  ;  and  it  seems  that 
the  judgment  of  an  inferior  court  may 


ment   himself  was   misled,   and   sub-     be  avoided,  by  proof  that  the  cause  of 
mitted  to  the  decision  instead  of  pro-     action  did  not  arise  within  the  jurisdio 


testing  against  it,  he  is  too  late  to  com- 
plain upon  an  appeal  against  it.  (Mac- 
allislerv.  Macallister,  4  Wilson  &  Shaw, 


tion  of  the  court.  (Willes,  36  n.;  2  Bing. 

213.) 

With  respect  to  the  proof  of  foreign 
142,  147.)  And  where  the  law  of  a  judgments  and  decrees  in  England,  it  has 
British  colony  required,  that,  on  a  suit  been  decided,  that  an  exemplification 
instituted  against  an  absent  party,  the  of  a  sentence  in  Holland  under  the 
process  should  be  served  upon  the  common  seal  of  the  States,  may  be  read 
King's  Attorney-General  in  the  colony,  in  evidence  in  a  suit  in  Chancery. 


but  it  was  not  expressly  provided  that     Anon.  9  Mod.  56. 
W 


253 


167 


EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 


BOOK  n.  circumstance  of  her  having  been  nominated  guardian  by  the 
CHAP,  vii.  domestic  judge.*  This  was  a  very  wrong  application  of  a  just 
principle :  for,  the  prince's  domestic  residence  could  be  no 
where  but  in  his  state  :  and  it  was  only  by  the  decree  of  the 
three  estates,  who  alone  had  a  right  to  choose  a  guardian  for 
their  sovereign,  that  the  authority  of  the  duchess  of  Longue- 
ville  became  firm  and  lawful  at  Neufchatel. 

In  the  same  manner  the  validity  of  a  testament,  (108)  as 


Wills  and 
testaments. 


*  Memorial  in  behalf  of  the  duchess 
of  Longueville,  1672. 

(108)  See  post  Book  II.  ch.  VIII. 
§  103,  p.  173,  and  §  111,  p.  175. 

It  is  now  settled  in  Great  Britain 
that  a  will  is  to  be  construed,  inter- 
preted, and  given  effect  to,  according  to 
the  law  of  the  country  where  it  was 
made  and  where  the  testator  had  his  domi- 
cile, and  every  court  in  ever)'  country 
is  bound  to  construe  it  accordingly. 
(Trotter  v.  Trotter,  3  Wilson  &  Shaw, 
Rep.  on  Appeal  Cases,  407,  414, — in 
House  of  Lords,  appeal  from  Scotland.) 
And,  therefore,  where  a  native  of  Scot- 
land, domiciled  in  India,  but  who  pos- 
sessed heritable  bonds  in  Scotland,  as 
well  as  personal  property  there,  and, 
also,  in  India,  having  executed  a  will  in 
India,  ineffectual  to  convey  Scotch  heri- 
tage; and  a  question  having  arisen 
whether  his  heir-at-law  (who  claimed 
the  heritable  bonds  as  heir)  was  also 
entitled  to  a  share  of  the  movable  pro- 
perty, as  legatee  under  the  will — it  was 
held  in  the  House  of  Lords,  in  Eng- 
land (affirming  the  judgment  of  the 
court  below),  that  the  construction  of 
the  will,  as  to  whether  it  expressed  an 
intention  to  pass  the  Scotch  heritable 
bonds,  and  the  legal  consequences  of 
that  construction,  must  be  determined  by 
the  law  of  the  land  where  it  was  made;  and 
where  the  testator  had  his  domicile,  namely 
India,  that  is,  by  the  law  of  England; 
and  this  although  the  will  was  the  sub- 
ject of  judicial  inquiry  in  the  courts 
of  Scotland ;  for,  these  courts  also  are 
bound  to  decide  according  to  the  law 
of  the  place  where  the  will  was  made. 
(Id.  ibid.  414.)  «  A  will  must  be  inter- 
preted according  to  the  law  of  the  coun- 
try where  it  is  made,  and  where  the 
party  making  the  will  has  his  domicile. 
There  are  certain  rules  of  construction 
adopted  in  the  courts,  and  the  expres- 
sions which  are  made  use  of  in  a  will, 
and  the  language  of  a  will,  have  fre- 
quently reference  to  those  rules  of  con- 
struction ;  and  it  would  be  productive, 
therefore,  of  the  most  mischievous  con- 
254 


sequences,  and  in  many  instances  de- 
feat the  intention  of  the  testator,  if 
those  rules  were  to  be  altogether  disre- 
garded, and  the  judges  of  a  foreign 
court  (which  it  may  be  considered,  in 
relation  to  the  will),  without  reference 
to  that  knowledge  which  it  is  desirable 
to  obtain  of  the  law  of  the  country  in 
which  the  will  was  made,  were  to  in- 
terpret the  will  according  to  their  own 
rules  of  construction.  That  would  also 
be  productive  of  another  inconvenience, 
namely,  that  the  will  might  have  a  con- 
struction put  upon  it  in  the  English 
courts  different  from  that  which  might 
be  put  upon  it  in  the  foreign  country. 
It  appears  to  me,  my  Lords,  that  there 
is  no  solid  ground  for  the  objection; 
but  that,  where  a  will  is  executed  in  a 
foreign  country  by  a  person  having  his 
domicile  in  that  country,  with  respect 
to  that  person's  property,  the  will  must 
be  interpreted  according  to  the  law  of 
the  country  where  it  is  made ;  it  must, 
if  it  comes  into  question,  in  any  pro- 
ceeding, have  the  same  interpretation 
put  upon  it  as  would  be  put  upon  it  in 
any  tribunal  of  the  country  where  it 
was  made." — Per  Lord  Chancellor. 

But,  where  a  will  was  made  by  a 
native  of  Scotland,  dotnidledin  England, 
and  having  personal  property  only  there, 
and  who  went  for  a  short  time  to  Scot- 
land, and  there  executed  his  will  in  the 
Scotch  form,  and  registered  it  there, 
and  afterwards  died  in  England,  it  was 
held  that  such  will  must  be  construed 
according  to  the  law  of  England,  (Jln- 
struther  v.  Chalmers,  2  Simons,  1).  It 
should  seem,  therefore,  that  in  some 
cases,  as  respects  personalty,  the  domi- 
cile of  the  testator  is  to  be  regarded 
rather  than  the  precise  place  of  signing 
the  will  (id.  ibid.,  sed  quere). 

A  will  made  in  Jamaica  devising 
rents,  issues,  and  profits  of  an  estate 
there,  passes  slaves,  mules,  cattle,  and 
machinery,  (3  Simons,  398,  Lushington 
v.  Sewell,  1  Simons,  435,  S.  P.),  though 
a  devise  of  a  farm  in  England  would 
not  pass  farming  utensils.  (Stewart  v. 


EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS.  167 

to  its  form,  can  only  be  decided  by  the  domestic  judge,  whose  BOOK  n 
sentence  delivered  in  form  ought  to  be  everywhere  acknow-  CHAP-  YI1' 
ledged.  But,  without  affecting  the  validity  of  the  testament 
itself,  the  bequests  contained  in  it  may  be  disputed  before  the 
judge  of  the  place  where  the  effects  are  situated,  because  those 
effects  can  only  be  disposed  of  conformably  to  the  laws  of  the 
country.  Thus,  the  abbs'  D' Orleans  above  mentioned  having 
appointed  the  prince  of  Conti  his  universal  legatee, — the 
three  estates  of  Neufchatel,  without  waiting  till  the  parlia- 
ment of  Paris  should  pronounce  their  decision  on  the  question 
of  two  contradictory  wills  made  by  the  abbe*  D'Orle'ans,  gave 
the  investiture  of  the  principality  to  the  duchess  of  Nemours, 
— declaring  that  the  sovereignty  was  unalienable.  Besides, 
it  might  have  been  said  on  this  occasion  also,  that  the  domestic 
residence  of  the  prince  could  be  nowhere  but  in  the  state. 

As  every  thing  included  in  the  country  belongs  to  the  §  86.  Desert 
nation, — and,  as  none  but  the  nation,  or  the  person  on  whom  a.nd  u"cul- 
she  has  devolved  her  right,  is  authorized  to  dispose  of  those 
things  (§  79), — if  she  has  left  uncultivated  and  desert  places 
in  the  country,  no  person  whatever  has  a  right  to  take  pos- 
session of  them  without  her  consent.  Though  she  does  not 
make  actual  use  of  them,  those  places  still  belong  to  her ;  she 
has  an  interest  in  preserving  them  for  future  use,  and  is  not 
accountable  to  any  person  for  the  manner  in  which  she  makes 
use  of  her  property.  It  is,  however,  necessary  to  recollect 
here  what  we  have  observed  above  (Book  I.  §  81).  No  nation 
can  lawfully  appropriate  to  herself  a  too  disproportionate  ex- 
tent of  country,  and  reduce  other  nations  to  want  subsistence, 
and  a  place  of  abode.  A  German  chief,  in  the  time  of  Nero, 
said  to  the  Romans,  "As  heaven  belongs  to  the  gods,  so  the 
earth  is  given  to  the  human  race ;  and  desert  countries  are 
common  to  all,"* — giving  those  proud  conquerors  to  under- 
stand that  they  had  no  right  to  reserve  and  appropriate  to 
themselves  a  country  which  they  left  desert.  The  Romans  [  168  ] 
had  laid  waste  a  chain  of  country  along  the  Rhine,  to  cover 
their  provinces  from  the  incursions  of  the  barbarians.  The 
German's  remonstrance  would  have  had  a  good  foundation, 
had  the  Romans  pretended  to  keep  without  reason  a  vast 
country  which  was  of  no  use  to  them  :  but  those  lands  which 
they  would  not  suffer  to  be  inhabited,  serving  as  a  rampart 
against  foreign  nations,  were  of  considerable  use  to  the  empire. 

When  there  is  not  this  singular  circumstance,  it  is  equally  §  87.  Duty 
agreeable  to  the  dictates  of  huma,nity,  and  to  the  particular 

respect. 

Maryat,  11  Ves.657.)  So,  if  a  Dutch-  (Anon.  9  Mod.  66,  and  see  Bowaman 
man  be  possessed  of  real  estate  in  Hoi-  v.  Reeve,  Pre.  Ch.  577.)  A  will  of 
land,  and  personal  estate  in  England,  property  entirely  abroad  may  be  proved 
and  devise  his  real  estate  to  A.,  and  there.  (Jaunay  v.  Sealey,  1  Vern.  397.) 
his  personal  to  B.,  the  personal  shall  *  Sicut  coelum  diis,  ita  terras  generi 
be  first  applied  to  pay  debts  in  Hoi-  mortalium  datas;  quseque  vacuse,  eas 
land,  though  real  estate  is  liable  there,  publicas  esse. — TACIT. 

255 


168  EFFECTS   OF   THE   DOMAIN   BETWEEN   NATIONS. 


K 


advantage  of  the  state,  to  give  those  desert  tracts  to  foreign- 
_CHAP._VII._  erg  Wk0  are  willing  to  clear  the  land  and  to  render  it  valuable. 
The  beneficence  of  the  state  thus  turns  to  her  own  advantage  ; 
she  acquires  new  subjects,  and  augments  her  riches  and  power. 
This  is  the  practice  in  America  ;  and,  by  this  wise  method, 
the  English  have  carried  their  settlements  in  the  new  world 
to  a  degree  of  power  which  has  considerably  increased  that 
of  the  nation.     Thus,  also,  tne  king  of  Prussia  endeavours  to 
re-people  his  states  laid  waste  by  the  calamities  of  former  wars. 
§  88.  Right     The  nation  that  possesses  a  country  is  at  liberty  to  leave 
•>f0P°h-SeSS"   *n  *^e  Primitive  state  of  communion  certain  things  that  have 
that  havTno  as  Je*  no  Owner5  or  t°  appropriate  to  herself  the  right  of 
owner.         possessing   those   things,  as  well  as  every  other  advantage 
which  that  country  is  capable  of  affording.     And,  as  such  a 
right  is  of  use,  it  is,  in  case  of  doubt,  presumed  that  the  nation 
has  reserved  it  to  herself.     It  belongs  to  her,  then,  to  the 
exclusion  of  foreigners,  unless   her  laws  expressly  declare 
otherwise  ;  as  those  of  the  Romans,  which  left  wild  beasts, 
fish,  &c.,  in  the  primitive  state  of  communion.     No  foreigner, 
therefore,  has  a  natural  right  to  hunt  or  fish  in  the  terri- 
tories of  a  state,  to  appropriate  to  himself  a  treasure  found 
there,  &c. 

g  89.  Rights  There  exists  no  reason  why  a  nation,  or  a  sovereign,  if  au- 
granted  to  thorized  by  the  laws,  may  not  grant  various  privileges  in  their 
another  na-  territories  to  another  nation,  or  to  foreigners  in  general,  since 
every  one  may  dispose  of  his  own  property  as  he  thinks  fit. 
Thus,  several  sovereigns  in  the  Indies  have  granted  to  the 
trading  nations  of  Europe  the  privilege  of  having  factories, 
ports,  and  even  fortresses  and  garrisons  in  certain  places 
within  their  dominions.  We  may  in  the  same  manner  grant 
the  right  of  fishing  in  a  river,  or  on  the  coast,  that  of  hunting 
in  the  forests,  &c.,  and,  when  once  these  rights  have  been 
validly  ceded,  they  constitute  a  part  of  the  possessions  of  him 
who  has  acquired  them,  and  ought  to  be  respected  in  the  same 
manner  as  his  former  possessions. 

g  90.   It  is       Whoever  agrees  that  robbery  is  a  crime,  and  that  we  are 

Webfdrive  not  a^owe(^   to  ta^e  fa^le  possession  of  our  neighbour's 

a  nationlout.Pr°Perty>  w^  acknowledge,  without  any  other  proof,  that  no 

of  a  country  nation  has  a  right  to  expel  another  people  from  the  country 

which  it  in-  they  inhabit,  in  order  to  settle  in'it  herself.     Notwithstanding 

habits,        f^g  extreme  inequality  of  climates  and  soils,  every  people 

ought  to  be  contented  with  that  which  has  fallen  to  their  share. 

[  169  ]  Will  the  conductors  of  nations  despise  a  rule  that  constitutes 

all  their  safety  in  civil  society  ?     Let  this  sacred  rule  be  en- 

tirely forgotten,  and  the  peasant  will  quit  his  thatched  cottage 

to  invade  the  palaces  of  the  great,  or  the  delightful  possessions 

of  the  rich.     The  ancient  Helvetians,  discontented  with  their 

native  soil,  burned  all  their  habitations,  and  commenced  their 

march,  in  order  to  establish  themselves,  sword  in  hand,  in  the 

fertile  plains  of  southern  Gaul.     But  they  received  a  terrible 

256 


EFFECTS   OF   THE   DOMAIN  BETWEEN   NATIONS.  169 

lesson  from  a  conqueror  of  superior  abilities  to  themselves,    BOOK  n. 
and  who  paid  still  less  regard  to  the  laws  of  justice.     Csesar  _ HAP-  Y"' 
defeated  them,  and  drove  them  back  into  their  own  country. 
Their  posterity,  however,  more  wise  than  they,  confine  their 
views  to  the  preservation  of  the  lands  and  the  independence 
they  have  received  from  nature :  they  live  contented,  and  the 
labour  of  free  hands  counterbalances  the  sterility  of  the  soil. 

There  are  conquerors,  who,  aspiring  after  nothing  more  g  91,  nor  to 
than  the  extension  of  the  boundaries  of  their  dominions,  with-  extend  by 
out  expelling  the  inhabitants  from  a  country,  content  them- violence  the 

•  i          i.  i    •          j.i.  •   i  ii-i.  1.1.  bounds  of 

selves  with  subduing  them  ; — a  violence  less  barbarous,  but  empire 
not  less  unjust :  while  they  spare  the  property  of  individuals, 
they  seize  all  the  rights  of  the  nation,  and  of  the  sovereign. 

Since  the  least  encroachment  on  the  territory  of  another  §  92.    The 
is  an  act  of  injustice, — in  order  to  avoid  the  commission  of  limits  of 
any  such  act,  and  to  prevent  every  subject  of  discord,  every  terr'tone* 
occasion  of  quarrel,  the  limits  of  territories  ought  to  be  marked  ^fefum- 
out  with  clearness  and  precision.     If  those  who  drew  up  the  settled, 
treaty  of  Utrecht  had  bestowed  on  so  important  a  subject  all 
the  attention  it  deserved,  we  should  not  see  France  and  Eng- 
land in  arms,  in  order  to  decide  by  a  bloody  war  what  are  to 
be  the  boundaries  of  their  possessions  in  America.     But  the 
makers  of  treaties  often  designedly  leave  in  them  some  obscu- 
rity, some  uncertainty,  in  order  to  reserve  for  their  nation  a 
pretext  for  a  rupture : — an  unworthy  artifice  in  a  transaction 
wherein  good  faith  alone  ought  to  preside !     We  have  also 
seen  commissioners  endeavouring  to  overreach  or  corrupt  those 
of  a  neighbouring  state,  in  order  to  gain  for  their  master  an 
unjust  acquisition  of  a  few  leagues  of  territory.     How  can 
princes  or  ministers  stoop  to  dirty  tricks  that  would  dishonour 
a  private  man  ? 

We  should  not  only  refrain  from  usurping  the  territory  of  g  93.  Viola- 
others  ;  we  should  also  respect,  and  abstain  from  every  act tion  of  ter- 
contrary  to  the  rights  of  the  sovereign :  for,  a  foreign  nation  nior?- 
can  claim  no  right  in  it  (§  79).     We  cannot,  then,  without 
doing  an  injury  to  a  state,  enter  its  territories  with  force  and 
arms  in  pursuit  of  a  criminal,  and  take  him  from  thence. 
This  would  at  once  be  a  violation  of  the  safety  of  the  state, 
and  a  trespass  on  the  rights  of  empire  or  supreme  authority 
vested  in  the  sovereign.     This  is  what  is  called  a  violation 
of  territory ;  and  among  nations  there  is  nothing  more  gene- 
rally acknowledged  as  an  injury  that  ought  to  be  vigorously 
repelled  by  every  state  that  would  not  suffer  itself  to  be  op- 
pressed.    We  shall  make  use  of  this  principle  in  speaking  of 
war,  which  gives  occasion  for  many  questions  on  the  rights 
of  territory. 

The  sovereign  may  forbid  the  entrance  of  his  territory  3  94.   Pro. 

hibition  to 

(109)   See  further  as   to  the  subject    A   84,  85;    Marten's  Law  of  Nations,  enter  the 
of  this  section,  1  Chit.  Com.  Law,  73     153.  territory. 

33  w2  257         (109) 


170  EFFECTS    OF   THE    DOMAIN   BETWEEN    NATION8. 

BOOK  n.    either  to  foreigners  in  general  or  in  particular  cases,  or  to 
CHAP.  YII.  certain  persons  or  for  certain  particular  purposes,  according 
as  he  may  think  it  advantageous  to  the  state.     There  is  no- 
thing in  all  this  that  does  not  flow  from  the  rights  of  domain 
and  sovereignty :  every  one  is  obliged  to  pay  respect  to  the 
prohibition  ;  and  whoever  dares  to  violate  it,  incurs  the  penalty 
decreed  to  render  it  effectual,  But  the  prohibition  ought  to  be 
known,  as  well  as  the  penalty  annexed  to  disobedience :  those 
who  are  ignorant  of  it,  ought  to  be  informed  of  it  when  they 
approach  to  enter  the  country.     Formerly  the  Chinese,  fear- 
ing lest  the  intercourse  of  strangers  should  corrupt  the  man- 
ners of  the  nation,  and  impair  the  maxims  of  a  wise  but  sin-, 
gular  government,  forbade  all  people  entering  the  empire :  a 
prohibition  that  was  not  at  all  inconsistent  with  justice,  pro- 
vided they  did  not  refuse  human  assistance  to  those  whom 
tempest  or  necessity  obliged  to  approach  their  frontiers.     It 
was  salutary  to  the  nation,  without  violating  the  rights  of  any 
individual,  or  even  the  duties  of  humanity,  which  permits  us. 
in  case  of  competition,  to  prefer  ourselves  to  others, 
g  95.    A          If  at  the  same  time  two  or  more  nations  discover  and  take 
country  pos- possession  of  an  island  or  any  other  desert  land  without  an 
sessed  by     Owner5  they  ought  to  agree  between  themselves,  and  make  an 
tiJniTat'the  equitable  partition ;  but,  if  they  cannot  agree,  each  will  have 
same  time,    the  right  of  empire  and  the  domain  in  the  parts  in  which 

they  first  settled. 

§  96.  A  An  independent  individual,  whether  he  has  been  driven 
country  pos-  from  his  country,  or  has  legally  quitted  it  of  his  own  accord, 
sessed  by  a  may  settle  jn  a  C0untry  which  he  finds  without  an  owner,  and 
there  possess  an  independent  domain.  Whoever  would  after- 
wards make  himself  master  of  the  entire  country,  could  not 
do  it  with  justice  without  respecting  the  rights  and  independ- 
ence of  this  person.  But,  if  he  himself  finds  a  sufficient 
number  of  men  who  are  willing  to  live  under  his  laws,  he  may 
form  a  new  state  within  the  country  he  has  discovered,  and 
possess  there  both  the  domain  and  the  empire.  But,  if  this 
individual  should  arrogate  to  himself  alone  an  exclusive  right 
to  a  country,  there  to  reign  monarch  without  subjects,  his 
vain  pretensions  would  be  justly  held  in  contempt : — a  rash 
and  ridiculous  possession  can  produce  no  real  right. 

There  are  also  other  means  by  which  a  private  person  may 
found  a  new  state.  Thus,  in  the  eleventh  century,  some 
Norman  noblemen  founded  a  new  empire  in  Sicily,  after  hav- 
ing wrested  that  island  by  conquest  from  the  common  enemies 
of  the  Christian  name.  The  custom  of  the  nation  permitted 
the  citizens  to  quit  their  country  in  order  to  seek  their  for- 
tune elsewhere. 

§  97.  inde-  When  several  independent  families  are  settled  in  a  country, 
pendent  fa-  they  possess  the  free  domain,  but  without  sovereignty,  since 
miiies  in  a  they  do  not  form  a  political  society.  Nobody  can  seize  the 
empire  of  that  country ;  since  this  would  be  reducing  tho&e 

258 


EFFECTS    OF   THE   DOMAIN   BETWEEN   NATIONS.  170 

families  to  subjection  against  their  will ;  and  no  man  has  a  BOOK  n. 
right  to  command  men  who  are  born  free,  unless  they  volun-  CHAP-  ™- 
tarily  submit  to  him. 

If  those  families  have  fixed  settlements,  the  place  possessed 
by  each  is  the  peculiar  property  of  that  family :  the  rest  of  [  171  ] 
the  country  of  which  they  make  no  use,  being  left  in  the 
primitive  state  of  communion,  belongs  to  the  first  occupant. 
Whoever  chooses  to  settle  there,  may  lawfully  take  possession 
of  it. 

Families  wandering  in  a  country,  as  the  nations  of  shep- 
herds, and  ranging  through  it  as  their  wants  require,  possess 
it  in  common :  it  belongs  to  them  to  the  exclusion  of  all  other 
nations ;  and  we  .cannot,  without  injustice,  deprive  them  of 
the  tracts  of  country  of  which  they  make  use.  But,  let  us 
here  recollect  what  we  have  said  more  than  once  (Book  I. 
§§  81  and  209,  Book  II.  §  69).  The  savages  of  North  Ame- 
rica had  no  right  to  appropriate  all  that  vast  continent  to 
themselves ;  and  since  they  were  unable  to  inhabit  the  whole 
of  those  regions,  other  nations  might,  without  injustice,  set- 
tle in  some  parts  of  them,  provided  they  left  the  natives  a 
sufficiency  of  land.  If  the  pastoral  Arabs  would  carefully 
cultivate  the  soil,  a  less  space  might  be  sufficient  for  them. 
Nevertheless,  no  other  nation  has  a  right  to  narrow  their 
boundaries,  unless  she  be  under  an  absolute  want  of  land. 
For,  in  short,  they  possess  their  country ;  they  make  use  of 
it  after  their  manner ;  they  reap  from  it  an  advantage  suit- 
able to  their  manner  of  life,  respecting  which  they  have  no 
laws  to  receive  from  any  one.  In  a  case  of  pressing  neces- 
sity, I  think  people  might,  without  injustice,  settle  in  a  part 
of  that  country,  on  teaching  the  Arabs  the  means  of  render- 
ing it,  by  the  cultivation  of  the  earth,  sufficient  for  their  own 
wants,  and  those  of  the  new  inhabitants. 

It  may  happen  that  a  nation  is  contented  with  possessing  $  98.    Pos- 
only  certain  places,  or  appropriating  to  itself  certain  rights,  session  of 
in  a  country  that  has  not  an  owner,  without  being  solicitous cemin 
to  take  possession  of  the  whole  country.     In  this  case,  an-  Jr"J*CeSin 
other  nation  may  take  possession  of  what  the  first  has  neg-  rights,  in  a 
lected ;  but  this  cannot  be  done  without  allowing  all  the  rights  vacant 
acquired  by  the  first  to  subsist  in  their  full  and  absolute  inde-  C0untl7- 
pendence.     In  such  cases,  it  is  proper  that  regulations  should 
be  made^by  treaty ;  and  this  precaution  is  seldom  neglected 
among  civilized  nations. 

259 


171  RULES   WITH   RESPECT   TO    FOREIGNERS. 


BOOK   II. 
CHAP.    VIII. 


CHAP.  VIII. 

RULES   WITH   RESPECT   TO   FOREIGNERS. 

§99.  Gene-     WE  have  already  treated^Book  I.  §  213)  of  tie  inhabi- 
™1  ldca  of    tants,  or  persons  who  reside  in  a  country  where  they  are  not 
the  state*10   citizens.     We  shall  here  treat  only  of  those  foreigners  who 
ought  to  ob-  pass  through  or  sojourn  in  a  country,  either  on  business,  or 
serve  to-      merely  as  travellers.    The  relation  that  subsists  between  them 
wards  fo-     an(j  ^e  gOCj[ety  jn  which  they  now  live — the  objects  of  their 
journey,  and  of  their  temporary  residence — the  duties  of  hu- 
manity— the  rights,  the  interest,  and  the  safety  of  the  state 
which  harbours  them — the  rights  of  that  to  which  they  belong 
[  172  ]  — all  these  principles,  combined  and  applied  according  to 
cases  and  circumstances,  serve  to  determine  the  conduct  that 
ought  to  be  observed  towards  them,  and  to  point  out  our  right 
and  our  duty  with  respect  to  them.    But  the  intention  of  this 
chapter  is  not  so  much  to  show  what  humanity  and  justice 
require  towards  foreigners,  as  to  establish  the  rules  of  the  law 
of  nations  on  this  subject — rules  tending  to  secure  the  rights 
of  all  parties,  and  to  prevent  the  repose  of  nations  being  dis- 
turbed by  the  quarrels  of  individuals. 

g  100.  En-  Since  the  lord  of  the  territory  may,  whenever  he  thinks 
tering  the  proper,  forbid  its  being  entered  (§  94),  he  has,  no  doubt,  a 
territory,  power  to  annex  what  conditions  he  pleases  to  the  permission 
to  enter.  This,  as  we  have  already  said,  is  a  consequence 
of  the  right  of  domain.  Can  it  be  necessary  to  add,  that  the 
owner  of  the  territory  ought,  in  this  instance,  to  respect  the 
duties  of  humanity  ?  The  case  is  the  same  with  all  rights 
whatever :  the  proprietor  may  use  them  at  his  discretion  ;  and, 
in  so  doing,  he  does  not  injure  any  person ;  but,  if  he  would 
be  free  from  guilt,  and  keep  his  conscience  pure,  he  will  never 
use  them  but  in  such  manner  as  is  most  conformable  to  his 
duty.  We  speak  here,  in  general,  of  the  rights  which  belong 
to  the  lord  of  the  country,  reserving  for  the  following  chapter 
the  examination  of  the  cases  in  which  he  cannot  refuse  an 
entrance  into  his  territory ;  and  we  shall  see,  in  Chap.  X.,  how 
his  duty  towards  all  mankind  obliges  him,  on  other  occasions, 
to  allow  a  free  passage  through,  and  a  residence  in  his  state. 
If  the  sovereign  annexes  any  particular  condition  to  the 
permission  to  enter  his  territories,  he  ought  to  have  measures 
taken  to  make  foreigners  acquainted  with  it,  when  they  pre- 
sent themselves  on  the  frontier. 

There  are  states,  such  as  China  and  Japan,  into  which  all 
foreigners  are  forbid  to  penetrate  without  an  express  permis- 


(110)  See  more  fully,  Grotiua,  book  2,  chap.  2,  p.  153;  1  Chit.  Com.  L.  86,  87. 
260 


KULES  WITH   RESPECT   TO   FOREIGNERS.  172 

sion ;  but,  in  Europe,  the  access  is  everywhere  free  to  every  BOOK  n. 
person  who  is  not  an  enemy  of  the  state,  except,  in  some  CHAP-  Tm: 
countries,  to  vagabonds  and  outcasts. 

But,  even  in  those  countries  which  every  foreigner  may  §  101.  FO- 
freely  enter,  the  sovereign  is  supposed  to  allow  him  access  reigners  are 
only  upon  this  tacit  condition,  that  he  be  subject  to  the  laws, 
— I  mean  the  general  laws  made  to  maintain  good  order,  and 
which  have  no  relation  to  the  title  of  citizen  or  of  subject  of 
the  state.  The  public  safety,  the  rights  of  the  nation  and 
of  the  prince,  necessarily  require  this  condition ;  and  the 
foreigner  tacitly  submits  to  it,  as  soon  as  he  enters  the  coun- 
try, as  he  cannot  presume  that  he  has  access  upon  any  other 
footing.  The  sovereignty  is  the  right  to  command  in  the 
whole  country ;  and  the  laws  are  not  simply  confined  to  regu- 
lating the  conduct  of  the  citizens  towards  each  other,  but  also 
determine  what  is  to  be  observed  by  all  orders  of  people 
throughout  the  whole  extent  of  the  state. 

In  virtue  of  this  submission,  foreigners  who  commit  faults  g  102.  and 
are  to  be  punished  according  to  the  laws  of  the  country.  The  punishable 
object  of  punishment  is  to  cause  the  laws  to  be  respected,  an 
to  maintain  order  and  safety.  r 

For  the  same  reason,  disputes  that  may  arise  between  foreign-  g  103.  who 
ers,  or  between  a  foreigner  and  a  citizen,  are  to  be  determined  is  the  judge 
by  the  judge  of  the  place,  and  according  to  the  laws  of  the  of  their  dls- 
place.  (Ill)  And,  as  the  dispute  properly  arises  from  theputes' 

(111)  {In  the  courts  of  the  United  amity  with  another  state,  the  courts  of 
States  alien  friends  are  entitled  to  claim  the  latter  ought  not  to  give  effect  to 
the  same  protection  of  their  rights  as  it.  In  neither  case  ought  the  accidental 
citizens.  Taylor  v.  Carpenter,  3  Story's  removal  of  either  of  the  parties  into  a 
Rep.  458.}  See  ante,  166,  in  notes,  as  foreign  country,  or  his  prosecuting  his 
to  foreign  judgments.  The  doctrine  remedy  there,  alter  the  substance  of  the 
here  advanced  by  Vattel  (excepting  as  remedy ;  and,  however  inconvenient 
regards  land)  is  contrary  to  the  present  and  difficult  it  may  be  to  investigate 
French  Code,  and  many  other  authors,  and  accurately  ascertain  the  precise 
Upon  principle,  it  should  seem,  that  if  state  of  foreign  law,  still,  if  courts  will 
a  contract  or  right  be  created  in  one  entertain  jurisdiction  over  such  cases, 
country,  and  be  there  by  the  lex  loci  they  ought  to  administer  the  law  so  as 
subjected  to  certain  qualifications,  and  to  give  effect  to  the  transaction  pre- 
clothed  with  certain  privileges,  it  ought  cisely  the  same  as  if  it  had  been  liti- 
to  be  enforced  if  at  all  as  against  all  gated  in  the  country  where  created ; 
the  original  parties,  precisely  the  same  for,  otherwise  the  original  expectations, 
in  a  foreign  country  as  it  would  be  in  rights,  and  interests  of  the  parties  would 
that  where  it  was  created ;  and  this,  not  be  given  effect  to ;  and  it  would  be 
although  it  be  a  negotiable  security,  conceded  that,  more  especially  after  a 
and  the  interest  therein  vested  in  a  competent  local  court  has  already  de- 
third  person  resident  in  a  foreign  cided  upon  the  transaction  (without  any 
country,  because  the  latter  ought,  apparent  injustice,)  such  decision  ought 
when  he  takes  it,  to  inquire  into  the  to  be  conclusive  in  all  other  courts  and 
circumstances  and  law  which  affected  countries. 

it  in  the  place  where  it  was  made.  These  principles  are  fully  acknow- 
And  (I  fortiori  it  should  seem  that  if  a  ledgod  and  given  effect  to  in  the  pre- 
contract or  transaction  were  in  viola-  sent  French  Code  and  in  their  admi- 
tion  of  the  state  regulations  of  a  foreign  nistration  of  the  law.  (See  Pardessus, 
nation  where  it  was  made,  as  in  fraud  Droit  Commercial,  vol.  1,  p.  455,  4  id. 
of  its  revenue,  and  such  state  is  in  196,  205,  209  to  211,  and  220  to  223, 

261 


1T3 


RULES   WITH    RESPECT   TO   FOREIGNERS. 


BOOK  ii.    refusal  of  the  defendant,  who  maintains  that  he  is  not  bound 

CHAP.  YIII.  to  perform  wnat  is  required  of  him,  it  follows,  from  the  same 

principle,  that  every  defendant  ought  to  be  prosecuted  before 

his  own  judge,  who  alone  has  a  right  to  condemn  him,  and 


titles,  "Dee  Conflitede  Legislation  relatif 
an  Commerce  ;"  "  De  V  application  de  lois 
estrangeres  relatives  &  la  forme  des  actes  ;"• 
"De  V  interpretation  des  actes  f  aits  en  pays 
estrangers  ;"  "  De  I'  execution  des  actes 
fails  en  pays  estrangers.")  Thus,  in  their 
courts  it  has  been  considered,  that, 
if  a  bill  of  exchange  be  made  in  a  fo- 
reign country,  defective  according  to  the 
French  law,  but  valid  according  to  the 
foreign  law,  it  must  nevertheless  be 
given  effect  to  in  the  French  courts, 
even  against  a  French  endorser,  "par  ce 
que  les  regies  sur  la  validiti  intrinseque 
des  conventions,  sont  derivees  du  droit 
natural,  et  sont  de  toutes  les  legislations  ;" 
and  in  the  case  of  limitations,  it  is  laid 
down  that  the  law  of  prescriptions 
prevailing  in  the  country  where  the 
contract  was  made,  though  different 
from  that  in  France,  must,  in  their 
courts,  be  given  effect  to.  (4  Pardessus, 
223.)  They  admit  the  difficulty  of  as- 
certaining correctly  the  foreign  law, 
but  consider  that  difficulty  as  not  con- 
stituting any  sufficient  grounds  for  re- 
lieving their  courts  from  the  necessity 
of  giving  full  effect  to  the  contract  ac- 
cording to  the  law  of  the  place  where 
it  was  made.  (4  Pardessus,  246.)  When 
the  foreign  law  differs  from  that  where 
the  suit  is  depending,  undoubtedly  the 
party  relying  on  the  foreign  law  must 
prove  it.  (Drown  v.  Lacy,  1  Dowl.  & 
Byl.  Ni.  Pri.  Cas.  41,  n.  (a).  As  to  the 
evidence,  see  post,  note.) 

In  Great  Britain  the  same  theory  is 
professed,  and  prevails  to  a  limited 
extent;  but  the  courts  have  so  nar- 
rowedly  applied  it,  that,  as  regards  the 
process  for  the  recovery  of  the  claim, 
and  the  time  when  it  must  be  commenced, 
it  is  a  doctrine  rather  in  name  than  in 
practice,  excepting  in  a  few  instances 
as  regards  foreign  marriages,  and  a  few 
other  cases.  Dalrymple  v.  Dalrymplc, 
Hagg.  Rep.  54 ;  Lacon  v.  Higgins,  1 
Dowl.  &  Ryl.  XL  Pri.  Rep.  38;  Roach 
v.  Garvan,  1  Ves.  159.)  In  theory  it  is 
laid  down,  that  effect  ought  to  be  given 
to  contracts,  and  especially  to  bills  of 
exchange  according  to  the  law  of  the 
country  where  the  contract  was  made, 
and  in  which  it  was  to  bo  performed, 
and  not  according  to  the  law  of  the 
country  into  which  either  or  all  may  ro- 
262 


move ;  for,  what  is  not  an  obligation  in 
one  place  cannot,  by  the  laws  of  another 
country,  become  such  in  another  place. 
(The  King  of  Spain  v.  Machado,  4 
Russ.  Rep.  239  ;  Burrows  v.  Jcmino,  2 
Stra.  733;  Sel.  Cas.  144,  S.  C. ;  Potter  v. 
Brown,  5  East,  130 ;  Chitty  on  Bills,  8th 
edit,  191.) 

And  a  foreign  marriage,  if  celebrated 
according  to  the  lex  loci,  will  be  valid, 
though  in  a  form  quite  different  to  that 
prescribed  by  English  law. — Lacon  v. 
Higgins,  1  Dowl.  <fe  Ryl.  Ni.  Pri.  Cas. 
38;  3  Stark.  Rep.  176;  where  see  the 
mode  of  proving  the  foreign  law.  As 
to  which  also  see  Hill  v.  Eeardon, 
Jacob's  Rep.  89,  90 ;  and  as  to  foreign 
marriages,  in  general,  see  1  Roper  on 
Husband  and  Wife,  333;  Lantatir  v. 
Teesdale,  8  Taunt.  830 ;  Smith  v.  Max- 
well,  Ry.  &  Mood.  Ni.  Pri.  Cas.  80; 
1  Carr.  &  Payne,  271,  S.  C.;  and  see 
Sutler  v.  Freeman,  Ambl.  303.  And 
indeed,  a  marriage  had  in  a  foreign 
country  will  not  be  valid  here  unless  it 
were  so  by  the  lex  loci.  (Butler  v.  Free- 
man, Ambl.  303.)  And,  where  the  de- 
fendant gave  the  plaintiff,  in  a  foreign 
country,  where  both  were  resident,  a 
bill  of  exchange  drawn  by  the  defend- 
ant upon  a  person  in  England,  which 
bill  was  afterwards  protested  here  for 
non-acceptance,  and  the  defendant 
afterwards,  while  still  abroad,  became 
bankrupt  there,  and  obtained  a  certifi- 
cate of  discharge  by  the  law  of  that 
state,  it  was  held  that  such  certificate 
was  a  bar  to  an  action  here  upon  an 
implied  assumpsit  to  pay  the  bill  in 
consequence  of  such  non-acceptance 
in  England,  because  such  implied  con- 
tract must  bo  considered  as  made 
abroad.  (Potter  v.  Bromi,  5  East,  124.) 
So,  in  England,  the  rule  is  recognised, 
that  the  payment  of  a  bill  is  to  be  made 
according  to  the  law  of  the  place  where 
it  was  made  payable,  as  best  corres- 
ponding with  the  original  intention  of 
the  parties.  (Beawes,  pi.  251 ;  Marius, 
102;  Poth.  pi.  155;  5  Barn.  &  Cres. 
443;  Chitty  on  Bills,  191.)  So,  the 
English  courts,  in  some  cases,  beside? 
giving  effect  to  the  contract  itself,  ac- 
cording to  the  foreign  law,  also  give 
effect  to  such  foreign  law  In  some  col- 
lateral respects,  acknowledging  that 


RULES    WITH    RESPECT    TO    FOREIGNERS. 


173 

compel  him  to  the  performance.     The  Swiss  have  wisely  made    BOOK  n. 
this  rule  one  of  the  articles  of  their  alliance,  in  order  to  pre-  CHAP-  VI11- 
vent  the  quarrels  that  might  arise  from  abuses  that  were  for- 
merly too  frequent  in  relation  to  this  subject.     The  defend- 


otherwise  the  greatest  injustice  might 
ensue.  Thus,  in  France,  a  protest  for 
non-payment  is  not  to  be  made  till  the 
day  after  a  bill  falls  due,  whereas  in 
England  it  must  be  made  upon  the 
very  day ;  and  it  cannot  be  doubted 
that  if  the  bill  were  payable  in  France 
the  English  courts  must  give  effect  to 
the  French  instead  of  the  English  law, 
(4  Pardessus,  227,  semble.)  So,  where 
a  wife  was  entitled  to  a  share  under 
the  statute  of  distribution,  and  was 
resident  in  Prussia,  and  by  the  laws  of 
which  one  moiety  of  the  effects  of  the 
husband  must  come  to  her  on  his  death, 
the  court  of  equity  here  did  not,  as 
usual,  require  him  to  make  any  settle- 
ment upon  his  wife.  (Sawyer  v.  Shute, 
1  Anst  63 ;  and  Campbell  v.  French,  3 
Ves.  323.) 

But  as  before  observed,  the  English 
courts  will  not,  as  respects  the  form 
of  the  remedy,  notice  the  foreign  law  ; 
and  therefore  a  foreigner  may  in  Eng- 
land be  arrested  for  a  debt,  or  in  equity 
upon  a  writ  of  ne  exeat,  in  respect  of 
which  he  could  not,  according  to  the 
foreign  law,  where  it  was  contracted, 
have  been  imprisoned.  (De  la  Vega 
v.  riaima,  1  Barn.  &  Adolph.  284;  10 
Barn.  &  Cress.  903;  Flack  v.  Holm, 

1  Jac.  <fc  Walk.  405.)     So,  though  ac- 
cording to  the  law  of  Holland,  persons 
jointly  concerned  in  trade  could  not  sue 
as  partners,  they  might  do  so  in  Eng- 
land.    (Shaw  v.  Harvey,  Mood.  &   M. 
226.)     And,   as   regards   the   time    for 
commencing  suits  on  foreign  contracts, 
the    English    courts,    contrary   to    the 
practice  in  France,  will  only  apply  the 
English  Statute  of  Limitations,  and  will 
not  regard  the  foreign  lex  loci.     (The 
British  Linen   Company  v.   Drummond, 
10    Barn.    &    Cress.    903;    1    Barn.    & 
Adolph.    285,   385;    1  Younge   &  Jerv. 
376;   {Nashv.  Tapper,  1  Caines's  Rep. 
402;    Decouche  v.    Savetier,    3    Johns. 
Cha.  Rep.  190  ;  LeRoy  v.  Crowninshield, 

2  .Mason's   Rep.  151;}   aliter  in  France, 
4  Partlessus,  223.)     But  it  must  be  ob- 
served, that,  in  the  case  of  The  British 
Linen  Company  v.  Drummond,  (10  Barn. 
&  Cress.  903),  the  much  more  distinct 
French  law  in  1  Pardessus,  455,  4  id. 
196,  209  to  211,  220  to  223,  and  285, 
was  not  cited,  and  that  Lord  Tenterden 


doubted  whether  the  decision  in  Del- 
valle  v.  The  York  Buildings  Company 
was  not  the  better  law. 

Again,  in  the  English  courts  there 
is  a  rule  of  narrow  petty  policy  not  to 
protect  the  revenue  laws  of  a  foreign 
state,  even  at  amity  with  this  country, 
but  even  to  encourage  and  give  effect 
to  the  most  dishonourable  practices, 
however  injurious  to  such  independent 
state;  so  that  British  subjects  are  al- 
lowed to  carry  on  smuggling  transac- 
tions adverse  to  the  interests  of  a  neigh- 
bouring country,  provided  they  do  not 
prejudice  our  own  revenue.  (Holman  v. 
Johnson,  Cowp.  343)— -per  Lord  Mans- 
field, "  no  country  ever  takes  notice  of  the 
revenue  laws  of  another."  (See  all  the 
cases  collected  and  observed  upon  in 
Chitty  on  Bills,  8th  edit.  143,  n.  c.) 
And  this  to  such  a  degree  that  a  British 
subject  has  been  allowed  in  the  English 
courts  to  support  an  action  against  a 
purchaser  of  paper  knowingly  made 
by  the  plaintiff  for  the  purpose  of  forg- 
ing assignats  upon  the  same,  to  be 
exported  to  France,  in  order  to  commit 
frauds  there  on  other  persons.  (Smith 
v.  Marconnoy,  2  Peake's  Rep.  81,  ad- 
denda ;  and  Strongitharm  v.  Lukyn, 
1  Esp.  Rep.  389).  Assuredly  one  state 
is  bound  to  act  towards  another  as 
neighbours  should  to  each  other;  and 
should  it  be  tolerated  that  the  latter 
should  encourage  frauds  of  one  upon 
the  other?  Express  treaties  sometimes 
expressly  provide  against  the  toleration 
of  such  practices.  So,  in  some  eases, 
the  English  courts  will  not  only  deny 
effect  to  a  correct  decision  of  a  foreign 
court  upon  the  lex  loci  applicable  to  the 
same  transaction,  but  will  actually  ad- 
judicate to  the  contrary.  Thus,  in  a 
late  case  it  was  held  in  chancery,  that 
a  distinct  holder  might  recover  in  an 
English  court  on  a  bill  drawn  in  France 
on  a  French  stamp,  although,  in  conse- 
quence of  it  not  being  in  the  form  re- 
quired by  the  French  Code,  another 
holder  had  failed  in  an  action  which  he 
brought  upon  it  in  a  French  court; 
and  the  vice-chancellor  is  reported  to 
have  been  of  opinion,  "  that  the  circum- 
stance of  the  bills  being  drawn  and  ac- 
cepted by  the  defendant  in  France,  and 
of  the  plaintiff  having  received  the  same 
263 


173 


RULES   WITH   RESPECT   TO   FOREIGNERS. 


3ooi  n.    ant's  judge  is  the  judge  of  the  place  where  that  defendant  has 
IAP.  vim  jjjg  settled  abode,  or  the  judge  of  the  place  where  the  defend- 
ant is,  when  any  sudden  difficulty  arises,  provided  it  does 
not  relate  to  an  estate  in  land,  or  to  a  right  annexed  to  such 


from  the  French  drawer,  and  of  the  bills 
having  been  drawn  in  such  a  form  in 
France  that  the  holder  could  not  recover 
on  them  in  France,  was  no  objection  to. 
his  recovering  on  them  in  an  English 
court."  ( Wynne  v.  Jackson,  2  Russ. 
352  ;  but  see  observations  in  Wynne  v. 
Cullender,  1  Russ.  293.) 

In  cases  where  the  foreign  law  and 
rule  of  construction  would  prevail,  care 
must  be  observed  to  establish  it,  and 
have  it  stated  on  the  record,  for  other- 
wise the  contract  will  be  construed  the 
same  as  an  English  contract ;  and  there- 
fore it  was  held  that  an  instrument  exe- 
cuted by  foreigners  in  a  foreign  country, 
as  in  Spain,  must,  on  demurrer,  be 
construed  by  the  same  grammatical 
rules  as  English  contracts,  and  according 
to  the  obvious  import  of  its  terms,  un- 
less there  be  an  allegation  in  the  bill  in 
equity,  setting  it  forth,  and  that,  accord- 
ing to  the  law  of  the  country  in  which 
it  was  executed,  the  true  construction 
of  it  is  different.  ( The  King  of  Spain 
and  Others  v.  Machado  and  Others,  4 
Russ.  224.) 

Where  an  English  commission  pre- 
cedes a  Scotch  sequestration,  all  Scotch 
personal  estate  is  liable  to  the  commis- 
sion, and  not  to  the  sequestration.  (Ex 
parte  Cridland,  3  Ves.  &  B.  100  ;  when 
otfierwise,  Ex  parte  Geddes,  1  Glyn  & 
J.  414) 

Legacy  in  a  foreign  country,  and 
coin,  as  sicca  rupees,  by  a  will  in  In- 
dia, if  paid  by  remittance  to  this  coun- 
try, the  payment  must  be  according  to 
the  current  value  of  the  rupee  in  India, 
without  regard  to  the  exchange  or  the 
expense  of  remittance  :  so,  as  to  other 
countries.  (  Cockerell  v.  Barber,  16  Ves. 
461.) 

With  respect  to  the  proof  of  foreign 
law,  it  must  in  general  be  established 
as  a  fact,  and  the  court  cannot  take 
notice  of  the  same  judicially.  (Free- 
moult  v.  Dedire,  1  P.  Wms.  431 ;  Ex 
parte  Cridland,  3  Ves.  &  B.  99  ;  {  Tal- 
bot  v.  Seeman,  1  Cranch,  l.|  It  is  not 
absolutely  necessary  to  prove  it  by  the 
production  of  an  examined  copy;  but 
a  printed  copy  of  the  Cinq  Codes  of 
France,  produced  by  the  French  vice- 
consul  resident  in  London,  purchased 
by  him  at  a  bookseller's  shop  at  Paris, 
264 


was  received  as  evidence  of  the  law  of 
France,  upon  which  the  Court  in  Eng- 
land would  act  in  deciding  upon  the 
v  validity  of  a  marriage  in  France  be- 
tween British  subjects.  (Lacon  v.  Hig- 
gins,  1  Dowl.  &  Ryl.  Ni.  Pri.  Rep.  38; 
3  Stark.  176,  S.  C.)  And  it  has  been 
supposed  that  the  same  point  was  de- 
cided in  Sir  Thomas  Picton's  case,  where 
the  question  arose  as  to  the  right  of  in- 
flicting torture  in  the  island  of  Trinidad, 
formerly  under  the  dominion  of  Spain ; 
and  the  attorney-general  of  the  island 
was  examined  as  a  witness,  and  the 
court  allowed  him  to  refer  to  printed 
books  purporting  to  contain  the  law  of 
Spain ;  and  Lord  Ellenborough,  C.  J., 
expressed  no  doubt  that  such  books  were 
receivable  as  evidence  of  the  law  of 
Spain  and  Trinidad.  (30  Howell's  State 
Trials,  514 ;  but  see  1  Dowl.  &  Ryl.  Ni. 
Pri.  Rep.  42,  n.  (a).) 

In  equity,  it  has  been  held  that  the 
foreign  law  must  be  verified  by  the  affi- 
davit of  a  professional  person  swearing 
positively,  and  not  by  the  affidavit  of 
another  person  not  professionally  ac- 
quainted with  the  law,  and  swearing 
only  to  information  and  belief.  (Hill  v. 
Reardon,  Jacob,  89.)  The  best  evidence 
is  an  affidavit  or  evidence  of  the  foreign 
consul,  or  a  foreign  advocate  of  experi- 
ence, stating  verbatim  the  terms  of  the 
foreign  law,  when  it  was  a  written  edict, 
or  in  the  nature  of  our  statute  law. 
(Flack  v.  Holm,  1  Jac.  &  Walk.  418.) 

As  respects  the  claims  of  a  sovereign 
of  a  foreign  independent  state  upon  a 
subject  of  Great  Britain,  it  seems  clear 
that  he  stands  in  the  same  situation  as 
a  private  subject  of  such  foreign  state. 
(Oreig  v.  Somerville,  1  Russ.  &  M.  388, 
case  of  the  emperor  of  Russia's  claim.) 
Lord  Hawkesbury  said,  that  a  foreign 
power  might  legally  apply  to  the  courts 
of  judicature,  and  might  obtain  redress, 
as  for  defamation  or  calumny  (6  Russ. 
Mod.  Europe,  20,  ante,  143),  excepting 
that,  in  respect  of  his  dignity,  ho,  like 
our  king,  is  not  to  recover  costs  Cante, 
154,  Hullet  v.  King  of  Spain,  1  Dow. 
Rep.  new  ser.  177);  and,  if  such  sove- 
reign has  never  been  in  England,  the 
statute  of  limitations  constitutes  no 
bar ;  and  in  equity  at  any  distance  of 
time,  however  remote,  whilst  there  is 


RULES   WITH    RESPECT   TO    FOREIGNERS.  173 

an  estate.     In  this  last  case,  as  property  of  that  kind  is  to    BOOK  n. 
be  held  according  to  the  laws  of  the  country  where  it  is  situ-  CHAP-  Yin- 
ated,  and  as  the  right  of  granting  possession  is  vested  in  the 
ruler  of  the  country,  disputes  relating  to  such  property  can 
only  be  decided  in  the  state  on  which  it  depends. 

We  have  already  shown  (§  84)  how  the  jurisdiction  of  a 
nation  ought  to  be  respected  by  other  sovereigns,  and  in  what 
cases  alone  they  may  interfere  in  the  causes  of  their  subjects 
in  foreign  countries. 

The  sovereign  ought  not  to  grant  an  entrance  into  his  state  \  104.  Pro- 
for  the  purpose  of  drawing  foreigners  into  a  snare :  as  soon  tection  due 
as  he  admits  them,  he  engages  to  protect  them  as  his  own  *°gforeisil~ 
subjects,  and  to  afford  them  perfect  security,  as  far  as  depends 
on  him.  Accordingly,  we  see  that  every  sovereign  who  has 
given  an  asylum  to  a  foreigner,  considers  himself  no  less 
offended  by  an  injury  done  to  the  latter,  than  he  would  be 
by  an  act  of  violence  committed  on  his  own  subject.  Hospi- 
tality was  in  great  honour  among  the  ancients,  and  even 
among  barbarous  nations,  such  as  the  Germans.  Those 
savage  nations  who  treated  strangers  ill,  that  Scythian  tribe 
who  sacrificed  them  to  Diana,*  were  universally  held  in  ab- 
horrence ;  and  Grotius  justly  saysf  that  their  extreme  ferocity 
excluded  them  from  the  great  society  of  mankind.  All  other 
nations  had  a  right  to  unite  their  forces  in  order  to  chastise 
them. 

From  a  sense  of  gratitude  for  the  protection  granted  to  \  105.  Theu 
him,  and  the  other  advantages  he  enjoys,  the  foreigner  ought duties- 
not  to  content  himself  with  barely  respecting  the  laws  of  the 

a  fund  in  court,  it  will  be  decreed  that  Columbian  Government  v.  Rothschild,  1 
the  foreign  sovereign  shall  be  at  liberty,  Simons,  94,  id.  68.)  And  the  sovereign 
by  his  ambassador,  to  go  before  the  of  a  foreign  state  must  either  sue  here 
master  and  prove  such  debt  due  from  in  his  own  name  or  by  his  ambassador; 
an  intestate's  estate  as  he  might  be  able,  and  his  subjects,  when  privately  inter- 
though  not  so  as  to  prejudice  any  pre-  ested,  must  sue  individually  in  their 
vious  distribution  (id.  ibid,  cases  first  names,  or  in  their  defined  political 
stated).  character;  and  an  ambassador  cannot 

It  has  been  recently  decided,  that  a  sue  in  England  as   procurator  general 

foreign  sovereign  has  a  right  to  sue  in  for  all   or  any  of  the   subjects   of  the 

the    English    courts    in    equity  as  well  foreign   sovereign.     (Spanish  Ambassa- 

as  at  law.     (Hullett  and  Others  v.  King  dor  v.  Bingley,  Hob.  113.) 

of  Spain,  1   Dow.    Rep.  new  ser.  169,  By    the     maritime     law    materially 

and  2  Bligh,  new  ser.  31,  in  the  House  affecting  the  intercourse  of  nations  with 

of   Lords,    on    appeal    from    Court  of  each    other,   when   damage    has   been 

Chancery.)     {The   Constitution  of  the  occasioned  to  a  ship  by  the  equal  fault 

United  States  gives  jurisdiction  to  the  of  those   managing    one    ship   as   the 

courts    of    the    United    States    where  other,  as,  by  running  foul  of  each  other, 

foreign   states   are   parties.     The  King  the  owner  of  the  damaged  vessel  is  to 

of  Spain  v.  Oliver,  2  Wash.  C.  C.  Rep.  receive  half  the  amount  of  the  damage 
sustained.     (Hay  v.  Le  Neve,  2  Shaw's 

If  a   foreign   state   sue  in  chancery,  Rep.  401  to  405.) 

the    bill    must    properly   describe    the  *  The     Taurians.     See     Grotius    de 

plaintiff,  so   that  he   may,   if  thought  Jure  Belli  et  Pacis,  lib.  ii.  cap.  xx.  $  xL 

fit,  bo  served  upon  a  cross  bill.     (The  n.  7. 

34                                   X  265 


173  KULES   WITH   KESPECT   TO   FOREIGNERS. 

BOOK  H.  country;  he  ought  to  assist  it  upon  occasion,  and  contribute 
CHAP,  vm.  j.Q  ^s  defencej  ag  far  as  is  consistent  with  his  duty  as  citizen 
of  another  state.  We  shall  see  elsewhere  what  he  can  and 
ought  to  do,  when  the  country  is  engaged  in  a  war.  But 
there  is  nothing  to  hinder  him  from  defending  it  against  pi- 
rates or  robbers,  against  the  ravages  of  an  inundation,  or  the 
[  174  ]  devastations  of  fire.  Can  he  pretend  to  live  under  the  pro- 
tection of  a  state,  to  participate  in  a  variety  of  advantages 
that  it  affords,  and  yet  make  no  exertion  for  its  defence,  but 
remain  an  unconcerned  spectator  of  the  dangers  to  which  the 
citizens  are  exposed? 

g  106.   To        He  cannot,  indeed,  be  subject  to  those  burdens  that  have 
what  bur-     oniy  a  r elation  to  the  quality  of  citizens ;   but  he  ought  to 
are'wib'ect   ^ear  ^s  snare  °^  a^  *ne  °tners-     Being  exempted  from  serving 
in  the  militia,  and  from  paying  those  taxes  destined  for  the 
support  of  the  rights  of  the  nation,  he  will  pay  the  duties  im- 
posed upon  provisions,   merchandise,  &c.,  and,  in  a  word, 
every  thing  that  has  only  a  relation  to  his  residence  in  the 
country,  or  to  the  affairs  which  brought  him  thither, 
g  107.   Fo-      The  citizen  or  the  subject  of  a  state  who  absents  himself 
reigners       for  a  time  without  any  intention  to  abandon  the  society  of 
continue      whicn  ne  'IS  a  member,  does  not  lose  his  privilege  by  his  ab- 

members  ot  '          .    .  -111          i 

their  own     sence :    he  preserves  his  rights,  and  remains  bound  by  the 
nation.        same  obligations.     Being  received  in  a  foreign  country,  in 
virtue  of  the  natural  society,  the  communication,  and  com- 
merce which  nations  are  obliged  to  cultivate  with  each  other 
(Prelim.  §§  11,  12 ;  Book  II.  §  21),  he  ought  to  be  considered 
there  as  a  member  of  his  own  nation,  and  treated  as  such. 
$  IDS.    The      The  state,  which  ought  to  respect  the  rights  of  other  na- 
state  has  no  tions,  and  in  general  those  of  all  mankind,  cannot  arrogate 
tiw^erson    *°  nerse^  anJ  power  over  the  person  of  a  foreigner,  who, 
ofVforeign-  though  he  has  entered  her  territory,  has  not  become  her  sub- 
er;  (112)      ject.     The  foreigner  cannot  pretend  to  enjoy  the  liberty  of 
living  in  the  country  without  respecting  the  laws :  if  he  vio- 
lates  them,  he  is   punishable  as  a  disturber  of  the   public 
peace,  and  guilty  of  a  crime  against  the  society  in  which  he 
lives :  but  he  is  not  obliged  to  submit,  like  the  subjects,  to  all 
the  commands  of  the  sovereign :  and,  if  such  things  are  re- 

(112)    But,   in    ancient    times,     the  able  claim,  or  even  a  demand  at  law  in 

Chancellor  had  jurisdiction,  by  writ  of  nature   of  an   account,   either   upon   a 

ne  exeat,   to  restrain  a  foreigner  or  a  contract  or  transaction  entered  into  in 

British  subject  from  going  abroad  and  the  foreign  country,  and   although   by 

communicating  intelligence  to  an  ene-  the  lex  loci  the  foreigner  could  not  have 

my,  or  otherwise  injurious  to  this  state,  been  arrested,  (Flack  v.  Holm,  1  Jac.  <fc 

And  the  Court  of  Chancery,  from  more  W.  405 ;    but   see    De    Carriers  v.  Co- 

to  more,  have  assumed  and  established  lonne,  4  Ves.  577) ;  and  it  is  now  set- 

a  jurisdiction  over  foreigners  in  favour  tied,  that  at  law,  a  foreigner  may  be 

of  a  private  subject;  so  that,  if  a  fo-  arrested  in   this   country  for  a  foreign 

reigner  bo  here,  and  be  about  to  depart,  debt,  though  he  could  not    have  been 

he  may  be  restrained  and  compelled  to  imprisoned  in  his  own  country.     (De  la 

give  security  for  satisfying  any  equit-  Vega  v.  Viannn,  1  Barn.  &  Adolph.  284.) 
266 


RULES   WITH   RESPECT   TO   FOREIGNERS.  174 

quired  of  him  as  he  is  unwilling  to  perform,  he  may  quit  the  BOOK  n. 
country.  He  is  free  at  all  times  to  leave  it ;  nor  have  we  a  CHAP-  YITI- 
right  to  detain  him,  except  for  a  time,  and  for  very  particu- 
lar reasons,  as,  for  instance,  an  apprehension,  in  war  time, 
lest  such  foreigner,  acquainted  with  the  state  of  the  country 
and  of  the  fortified  places,  should  communicate  his  know- 
ledge to  the  enemy.  (113)  From  the  voyages  of  the  Dutch 
to  the  East  Indies,  we  learn  that  the  kings  of  Corea  forcibly 
detain  foreigners  who  are  shipwrecked  on  their  coast;  and 
Bodinus  assures  us,*  that  a  custom  so  contrary  to  the  law  of 
nations  was  practised  in  his  time  in  ^Ethiopia,  and  even  in 
Muscovy.  This  is  at  once  a  violation  of  the  rights  of  indivi- 
duals, and  of  those  of  the  state  to  which  they  belong.  Things 
have  been  greatly  changed  in  Russia ;  a  single  reign — that 
of  Peter  the  Great — has  placed  that  vast  empire  in  the  rank 
of  civilized  nations. 

The  property  of  an  individual  does  not  cease  to  belong  to  ?  109.  nor 
him  on  account  of  his  being  in  a  foreign  country;  it  still  con- over Ws Pr°- 
stitutes  a  part  of  the  aggregate  wealth  of  his  nation  (§  81). perty' 
Any  power,  therefore,  which  the  lord  of  the  territory  might  [  175  ] 
claim  over  the  property  of  a  foreigner  would  be  equally  de- 
rogatory to  the  rights  of  the  individual  owner  and  to  those 
of  the  nation  of  which  he  is  a  member.  (114) 

Since  the  foreigner  still  continues  to  be  a  citizen  of  his  ?  no.  Who 
own  country,  and  a  member  of  his  own  nation  (§  107),  the  a™  *^e  h.eirs 
property  he  leaves  at  his  death  in  a  foreign  country  ought  °r  a  oreign" 
naturally  to  devolve  to  those  who  are  his  heirs  according  to 
the  laws  of  the  state  of  which  he  is  a  member.     But,  not- 
withstanding this  general  rule,  his  immovable  effects  are  to 
be  disposed  of  according  to  the  laws  of  the  country  where 
they  are  situated.     (See  §  103.) 

As  the  right  of  making  a  will,  or  of  disposing  of  his  for-  $  m.   Will 
tune  in  case  of  death,  is  a  right  resulting  from  property,  it  of 
cannot,  without  injustice,  be  taken  from  a  foreigner.     Theer' 
foreigner,  therefore,  by  natural  right,  has  the  liberty  of  mak- 
ing a  will.     But,  it  is  asked,  by  what  laws  he  is  obliged  to 
regulate  himself,  either  in  the  form  of  his  testament,  or  in 
the  disposal  of  his  property.     1.  As  to  the  form  or  solemni- 
ties appointed  to  settle  the  validity  of  a  will,  it  appears  that 
the  testator  ought  to  observe  those  that  are  established  in  the 
country  where  he  makes  it,  unless  it  be  otherwise  ordained 
by  the  laws  of  the  state  of  which  he  is  a  member ;  in  which 


(113)  But  see  ante,  105,  and  note.  (115)   Ante,  167,  and  note  ;    and  see 
*  In  his  Republic,  book  i.  chap.  vi.  Vattel   cited,  Anstnilher  v.   Chalmer,  2 

(114)  But  specific  performance  of  an  Sim.  Rep.  4 ;  but  see  Trotter  v.  Trotter, 
agreement  relating  to  the   boundaries  3  Wils.  &  Shaw,  407,  414,  and  ante,  167, 
of  two  provinces  in  America,  may  be  en-  in  notes  ,•   and  see  Anon.  9  Mod.   66  ; 
forced  by  bill  in  chancery  in  England,  Bowaman  v.  Reeve,  Pre.  Ch.  577,  ante, 
if  the  parties  be  within  the  jurisdiction.  173,  note. 

(Penn  v.  Baltimore,  1  Ves.  sen.  444.) 

267 


175  RULES  WITH   RESPECT   TO   FOREIGNERS. 

BOOK  n.  case,  he  will  be  obliged  to  observe  the  forms  which  they  pre- 
CHAP.  YIII.  scrjbe?  if  he  Would  validly  dispose  of  the  property  he  pos- 
sesses in  his  own  country.  I  speak  here  of  a  will  which  is 
to  be  opened  in  the  place  where  the  person  dies ;  for,  if  a  tra- 
veller makes  his  will,  and  sends  it  home  under  seal,  it  is  the 
same  thing  as  if  it  had  been  written  at  home ;  and,  in  this 
case,  it  is  subject  to  the  laws  of  his  own  country.  2.  As  to 
the  bequests  themselves,  we  have  already  observed  that  those 
which  relate  to  immovables  ought  to  be  conformable  to  the 
laws  of  the  country  where  those  immovables  are  situated. 
The  foreign  testator  cannot  dispose  of  the  goods,  movable  or  im- 
movable, which  he  possesses  in  his  own  country,  otherwise  than 
in  a  manner  conformable  to  the  laws  of  that  country.  But,  as 
to  movable  goods,  specie,  and  other  effects  which  he  possesses 
elsewhere,  which  he  has  with  him,  or  which  follow  his  person, 
we  ought  to  distinguish  between  the  local  laws,  whose  effect 
cannot  extend  beyond  the  territory,  and  those  laws  which 
peculiarly  affect  the  character  of  citizen.  The  foreigner,  re- 
maining a  citizen  of  his  own  country,  is  still  bound  by  those 
last-mentioned  laws,  wherever  he  happens  to  be,  and  is  obliged 
to  conform  to  them  in  the  disposal  of  his  personal  property, 
and  all  his  movables  whatsoever.  The  laws  of  this  kind, 
made  in  the  country  where  he  resides  at  the  time,  but  of 
which  he  is  not  a  citizen,  are  not  obligatory  with  respect  to 
him.  Thus,  a  man  who  makes  his  will,  and  dies  in  a  foreign 
country,  cannot  deprive  his  widow  of  the  part  of  his  movable 
effects  assigned  to  that  widow  by  the  laws  of  his  own  country. 
A  Genevan,  obliged  by  the  law  of  Geneva  to  leave  a  dividend 
of  his  personal  property  to  his  brothers  or  his  cousins,  if  they 
[  176  ]  be  his  next  heirs,  cannot  deprive  them  of  it  by  making  his 
will  in  a  foreign  country,  while  he  continues  a  citizen  of  Ge- 
neva ;  but,  a  foreigner  dying  at  Geneva  is  not  obliged,  in  this 
respect,  to  conform  to  the  laws  of  the  republic.  The  case  is 
quite  otherwise  with  respect  to  local  laws :  they  regulate  what 
may  be  done  in  the  territory,  and  do  not  extend  beyond  it. 
The  testator  is  no  longer  subject  to  them  when  he  is  out  of 
the  territory ;  and  they  do  not  affect  that  part  of  his  property 
which  is  also  out  of  it.  The  foreigner  is  obliged  to  observe 
those  laws,  in  the  country  where  he  makes  his  will,  with  re- 
spect to  the  goods  he  possesses  there.  Thus,  an  inhabitant 
of  Neufchatel,  to  whom  entails  are  forbidden  in  his  own  coun- 
try with  respect  to  the  property  he  possesses  there,  freely 
makes  an  entail  of  the  estate  he  possesses  out  of  the  juris- 
diction of  the  country,  if  he  dies  in  a  place  where  entails  are 
allowed ;  and,  a  foreigner  making  a  will  at  Neufchatel,  can- 
not make  an  entail  of  even  the  movable  property  he  possesses 
there, — unless,  indeed,  we  may  suppose  that  his  movable  pro- 
perty is  excepted  by  the  spirit  of  the  law. 

a  112    Ea-       What  we  have  established  in  the  three  preceding  sections 
cheatkge      is  sufficient  to  show  with  how  little  justice  the  crown,  in  some 


RULES   WITH   RESPECT   TO   FOREIGNERS.  176 

states,  lays  claim  to  the  effects  left  there  by  a  foreigner  at    BOOK  n. 
his  death.     This  practice  is  founded  on  what  is  called  escheat-  CH 


age,  by  which  foreigners  are  excluded  from  all  inheritances  (or  doctrine 
in  the  state,  either  of  the  property  of  a  citizen  or  that  of  an  Jjj?*^"'^ 
alien,  and,  consequently,  cannot  be  appointed  heirs  by  will, 
nor  receive  any  legacy.  Grotius  justly  observes,  that  this 
law  has  descended  to  us  from  those  ages  when  foreigners  were 
almost  considered  as  enemies.*  Even  after  the  Romans  were 
become  a  very  polite  and  learned  people,  they  could  not  ac- 
custom themselves  to  consider  foreigners  as  men  entitled  to 
any  right  in  common  with  them.  "Those  nations,"  says 
Pomponius,  the  civilian,  "with  whom  we  have  neither  friend- 
ship, nor  hospitality,  nor  alliance,  are  not,  therefore,  our  ene- 
mies ;  yet,  if  any  thing  belonging  to  us  falls  into  their  hands, 
it  becomes  their  property ;  our  free  citizens  become  slaves  to 
them;  and  they  are  on  the  same  terms  with  respect  to  us."f 
We  cannot  suppose  that  so  wise  a  people  retained  such  inhu- 
man laws  with  any  other  view  than  that  of  a  necessary  reta- 
liation, as  they  could  not  otherwise  obtain  satisfaction  from 
barbarous  nations,  with  whom  they  had  no  connection  or  trea- 
ties existing.  Bodinus  shows,!  that  escheatage  is  derived  from 
these  worthy  sources  !  It  has  been  successively  mitigated,  or 
even  abolished,  in  most  civilized  states.  The  emperor  Fre- 
deric II.  first  abolished  it  by  an  edict,  which  permitted  all 
foreigners  dying  within  the  limits  of  the  empire  to  dispose 
of  their  substance  by  will,  or,  if  they  died  intestate,  to  have 
their  nearest  relations  for  heirs.%  But  Bodinus  complains 
that  this  edict  is  but  ill  executed.  Why  does  there  still  re-  [  177  ] 
main  any  vestige  of  so  barbarous  a  law  in  Europe,  which  is 
now  so  enlightened  and  so  full  of  humanity  ?  The  law  of 
nature  cannot  suffer  it  to  be  put  in  practice  except  by  way 
of  retaliation.  This  is  the  use  made  of  it  by  the  king  of  Po- 
land in  his  hereditary  states.  ^Escheatage  is  established  in 
Saxony;  but  the  sovereign  is  so  just  and  equitable,  that  he 
enforces  it  only  against  those  nations  which  subject  the  Saxons 
to  a  similar  law. 

The  right  of  traite  foraine  (called  in  Latin  jus  detractus)  $  us.   Th« 
is  more  conformable  to  justice  and  the  mutual  obligation  of  rie^lt  of 
nations.     We  give  this  name  to  the  right  by  virtue  of  which  ^'«/°~ 
the  sovereign  retains  a  moderate  portion  of  the  property 
either  of  citizens  or  aliens  which  is  sent  out  of  his  territories 
to  pass  into  the  hands   of  foreigners.     As  the  exportation  of 

(116)  As  to  alienage  in  general,  and  the  same,  notwithstanding  a  subsequent 

the    jealous    provisions     in     England  war — Sutton  v.  Sutton,  1  Russ.  &  Myl. 

against  foreigners,  see  1  Chitty's  Com-  Rep.  663. 

mercial   Law,  108  to  169.     See  excop-        *  De  Jure  Belli  et  Pacis,  lib.  ii.  cap. 

tions  in  treaty  with  America,  and  de-  vi.  §  14. 

cisions   thuroon  with   respect  to  Ame-        f  Digest,  lib.  xlix.  tit  XT.    De  Cap- 

ricans   who   were    seised    of   lands  in  tivis,  et  Postlimin. 
Wreat  Britain,  being  allowed  to  retain        J  His  Republic,  book  i.  chap.  vi. 
x2  269 


177  RULES   WITH   RESPECT   TO    FOREIGNERS. 

BOOK  IT.    that  property  is  a  loss  to  the  state,  she  may  fairly  receive  an 
CHAP.  TIII.  equable  compensation  for  it. 

§  114.  Im-  Every  state  has  the  liberty  of  granting  or  refusing  to 
movable  foreigners  the  power  of  possessing  lands  or  other  immovable 
possessed  property  within  her  territory.  (117)  If  she  grants  them  that 
by  an  alien,  privilege,  all  such  property  possessed  by  aliens  remains  sub- 
ject to  the  jurisdiction  and  laws  of  the  country,  and  to  the 
same  taxes  as  other  property  of  the  same  kind.  The  author- 
ity of  the  sovereign  extends  over  the  whole  territory ;  and  it 
would  be  absurd  to  except  some  parts  of  it,  on  account  of 
their  being  possessed  by  foreigners.  If  the  sovereign  does 
not  permit  aliens  to  possess  immovable  property,  nobody  has 
a  right  to  complain  of  such  prohibition ;  for,  he  may  have 
very  good  reasons  for  acting  in  this  manner :  and,  as  foreigners 
cannot  claim  any  right  in  his  territories  (§  79),  they  ought 
not  to  take  it  amiss  that  he  makes  use  of  his  power  and  of 
his  rights  in  the  manner  which  he  thinks  most  for  the  advan- 
tage of  the  state.  And,  as  the  sovereign  may  refuse  to 
foreigners  the  privilege  of  possessing  immovable  property,  he 
is  doubtless  at  liberty  to  forbear  granting  it  except  with  cer- 
tain conditions  annexed. 

§  115.  Mar-      There  exists  no  natural  impediment  to  prevent  foreigners 
nages  of      from  contracting  marriages  in  the  state.     But,  if  these  mar- 

(117)  By  the  municipal  law  of  Great  discovery  filed  to  ascertain  whether  he 

Britain,   no   alien  can  inherit   or   hold  has  purchased  land.     (Duplesses  v.  At- 

real   property.      Thus,  Doe  v.  Acklam,  torney-General,  1  Bro.  P.  C.  415  ;  2  Ves. 

2   Bar.  A    Cress.   799,  establishes   that  286.) 

a  person  born  in  the  United  States,  (118)  The  validity  of  a  marriage 
since  1783,  when  the  two  countries  celebrated  in  a  foreign  country  must 
were  separated,  cannot  inherit  lands  in  be  determined  in  an  English  court  by 
England ;  and  the  same  point  was  after-  the  lex  loci  where  the  marriage  was 
wards  decided  in  Doe  d..  Auchmiity  v.  solemnized ;  and,  therefore,  on  a  plea 
Mulcaster,  5  Barn.  <t  Cres.  771.  To  of  coverture,  where  the  parties,  who 
this  rule  some  exemptions  have  been  oc-  were  British  subjects,  were  married  in 
casionally  introduced  by  express  treaty  France,  it  was  held,  that,  if  the  mar- 
intended  to  be  permanent,  as  regards  riage  would  not  be  valid  in  that  coun- 
such  exception,  and  strengthened  by  try,  according  to  the  municipal  law 
statute;  as  under  the  treaty  of  1794,  there,  it  would  not  be  valid  in  this 
between  Great  Britain  and  America,  country.  It  was  even  further  held 
and  the  act  37  Geo.  III.  c.  97,  under  that  a  printed  copy  of  the  "  Cinq  Codes" 
which  American  citizens  who  held  lands  of  France,  produced  by  the  French 
in  Great  Britain,  on  28  Oct  1795,  and  vice-consul  resident  in  London,  pur- 
their  heirs  and  assigns,  are  at  all  times  chased  by  him  at  a  bookseller's  shop 
to  be  considered,  so  far  as  regards  those  in  Paris,  was  properly  received  as  evi- 
lands,  not  as  aliens,  but  as  native  sub-  dence  of  the  law  of  France  upon  which 
jects  of  Great  Britain,  and  this,  not-  the  court  would  act ;  and  Abbott,  C.  J., 
withstanding  a  subsequent  war  and  said:  The  general  rule  certainly  is, 
the  adherence  of  the  citizen  to  Ame-  that  the  written  law  of  a  foreign  coun- 
rica  whilst  at  war  with  Great  Britain,  try  must  be  proved  by  an  examined 
(Sutton  v.  Sutton,  1  Russ.  <fe  M.  663),  copy  thereof  before  it  can  be  acted 
and  the  consequent  confliction  of  duties  upon  in  an  English  court ;  but,  accord- 
as  regards  the  American  citizen  seised  ing  to  my  recollection,  printed  books 
of  such  estate.  But,  as  alienage  sub-  upon  the  subject  of  the  law  of  Spain 
jects  no  party  to  any  indictment  or  pe-  were  referred  to  and  acted  upon  in 
nalty,  an  alien  must  answer  a  bill  of  argument  in  Sir  Thomat  I'icton's  case, 
270 


CHAP. 


EIGHTS   WHICH   BELONG  TO   ALL   NATIONS.  177 

riao-es  are  found  prejudicial  or  dangerous  to  a  nation,  she  has    BOOK  n. 

^  •  1  1  1  1     M     ',         ,1  r*TJAt>     TnT 

a  right,  and  is  even  in  duty  bound  to  prohibit  them,  or  to . 
subject  to  certain  conditions  the  permission  to  contract  them: 
and,  as  it  belongs  to  the  nation  or  to  her  sovereign  to  deter- 
mine what  appears  most  conducive  to  the  welfare  of  the  state, 
other  nations  ought  to  acquiesce  in  the  regulations  which  any 
sovereign  state  has  made  on  this  head.  Citizens  are  almost 
everywhere  forbid  to  marry  foreign  wives  of  a  different  religion ; 
and  in  many  parts  of  Switzerland  a  citizen  cannot  marry  a 
foreign  woman,  unless  he  prove  that  she  brings  him  in  mar- 
riage a  certain  sum  fixed  by  the  law. 


CHAP.  IX.  [  178  ] 

OF   THE   RIGHTS   RETAINED  BY  ALL  NATIONS   AFTER   THE         CHAP,  ix. 
INTRODUCTION    OF   DOMAIN   AND   PROPERTY. 

IF  an  obligation,  as  we  have  before  observed,  gives  a  right  \  lie.  What 
to  those  things  without  which  it  cannot  be  fulfilled,  every  ab- are  the 
solute,  necessary,  and  indispensable   obligation  produces  H^j^men 
this  manner  rights  equally  absolute,  necessary,  and  indefea- cannot  be 
sible.     Nature  imposes  no  obligations  on  men  without  giving  deprived, 
them  the  means  of  fulfilling  them.     They  have  an  absolute 
right  to  the  necessary  use  of  those  means :  nothing  can  deprive 
them  of  that  right,  as  nothing  can  dispense  with  their  fulfilling 
their  natural  obligations. 

In  the  primitive  state  of  communion,  men  had,  without  dis-§  117.  Right 
tinction,  a  right  to  the  use  of  every  thing,  as  far  as  was  ne- sti11  remain- 
cessary  to  the  discharge  of  their  natural  obligations.     And,  JUSS**" 
as  nothing  could  deprive  them  of  this  right,  the  introduction  ^"teVfcom- 
of  domain  and  property  could  not  take  place  without  leaving  munion. 
to  every  man  the  necessary  use  of  things, — that  is  to  say, 
the  use  absolutely  required  for  the  fulfilment  of  natural  obli- 
gations.    We  cannot,  then,  suppose  the  introduction  to  have 
taken   place  without   this  tacit   restriction,  that  every  man 
should  still  preserve  some  right  to  the  things  subjected  to  pro- 
perty, in  those  cases  where,  without  this  right,  he  would  re- 
main absolutely  deprived  of  the  necessary  use  of  things  of  this 
nature.     This  right  is  a  necessary  remnant  of  the  primitive 
state  of  communion. 

Notwithstanding   the   domain  of  nations,  therefore,  each  ? 118-  Righ* 
nation  still  retains  some  right  to  what  is  possessed  by  others, retained  .bv 
in  those  cases  where  she  would  find  herself  deprived  of  the  J"J  ^m 

as  evidence  of  the  law  of  that  country,  of  France.  (Lacon  v.  Hiygini,  1  Dowl- 
and,  therefore,  I  shall  act  upon  that  ing  &  Ryland,  Ni.  Pri.  Cases,  38;  3 
authority,  and  receive  the  printed  copy  Stark.  Rep.  176,  S.  C.;  Sutler  v.  Free- 
now  produced  as  evidence  of  the  law  man,  Ambl.  303.) 

271 


178  RIGHTS   WHICH   BELONG   TO   ALL   NATIONS. 


BOOK  n.    necessary  use  of  certain  things  if  she  were  to  be  absolutely 
—  debarred  from  using  them  by  the  consideration  of  their  be- 


CHAP. 


property  of  }ng  Other  people's  property.  We  ought  carefully  to  weigh 
every  circumstance  in  order  to  make  a  just  application  of 
this  principle. 

§  119.  Right  I  say  the  same  of  the  right  of  necessity.  We  thus  call  the 
of  necessity,  right  which  necessity  alone  gives  to  the  performance  of  cer- 
tain actions  that  are  otherwise'  unlawful,  when,  without  these 
actions,  it  is  impossible  to  fulfil  an  indispensable  obligation. 
But  it  is  carefully  to  be  noted,  that,  in  such  a  case,  the  obli- 
gation must  really  be  an  indispensable  one,  and  the  act  in 
question  the  only  means  of  fulfilling  that  obligation.  If 
either  of  these  conditions  be  wanting,  the  right  of  necessity 
does  not  exist  on  the  occasion.  We  may  see  these  subjects 
discussed  in  treatises  on  the  law  of  nature,  and  particularly 
in  that  of  Mr.  Wolf.  I  confine  myself  here  to  a  brief  sum- 
mary of  those  principles  whose  aid  is  necessary  to  us  in  de- 
[  179  ]  veloping  the  rights  of  nations. 

§  120.  Right     The  earth  was  designed  to  feed  its  inhabitants ;  and  he  who 
of  procuring  jg  jn  want  Of  every  thing  is  not  obliged  to  starve  because  all 
b^fbrce113    Pr°PertJ  is  vested  in  others.     When,  therefore,  a  nation  is 
(fig)    '      in  absolute  want  of  provisions,  she  may  compel  her  neigh- 
bours who  have  more  than  they  want  for  themselves  to  supply 
her  with  a  share  of  them,  at  a  fair  price ;  she  may  even  take 
it  by  force,  if  they  will  not  sell  it.     Extreme  necessity  re- 
vives the  primitive  communion,  the  abolition  of  which  ought 
to  deprive  no  person  of  the  necessaries  of  life  (§  117).     The 
same  right  belongs  to  individuals,  when  a  foreign  nation  re- 
fuses them  a  just  assistance.     Captain  Bontekoe,  a  Dutchman, 
having  lost  his  vessel  at  sea,  escaped  in  his  boat,  with  a  part 
of  his  crew,  and  landed  on  an  Indian  coast,  where  the  bar- 
barous inhabitants  refusing  him  provisions,  the  Dutch  obtained 
them  sword  in  hand.* 

1 121.  Right     In  the  same  manner,  if  a  nation  has  a  pressing  want  of  the 
of  making    ghips,  wagons,  horses,  or  even  the  personal  labour  of  foreign- 
thin0^  that  ers'  sne  ma7  ma^e  use  °^  them,  either  by  free  consent  or  by 
belong  to     force,  provided  that  the  proprietors  be  not  under  the  same 
others.  (119)  necessity.     But,  as  she  has  no  more  right  to  these  things  than 
necessity  gives  her,  she  ought  to  pay  for  the  use  she  makes 
of  them,  if  she  has  the  means  of  paying.     The  practice  of 
Europe  is  conformable  to  this  maxim.     In  cases  of  necessity, 
a  nation  sometimes  presses  foreign  vessels  which  happen  to 
be  in  her  ports ;  but  she  pays  a  compensation  for  the  services 
performed  by  them. 

g  122.  Right     Let  us  say  a  few  words  on  a  more  singular  case,  since  au- 
of  carrying  thors  have  treated  of  it — a  case  in  which  at  present,  people 

off  women. 

(119)  See  the  doctrine  of  Preemption,        *  Bonketoe's  Voyage,  in  the  Voyage* 
1  Chitty's  Com.  Law,  103, 104,  105,  446,     of  the  Dutch  to  the  East  Indies. 
447. 
272 


EIGHTS   WHICH   BELOXG   TO   ALL   NATIONS.  179 

are  never  reduced  to  employ  force.  A  nation  cannot  preserve  BOOK  n. 
and  perpetuate  itself,  except  by  propagation.  A  nation  of  CHAP'  IX" 
men  has,  therefore,  a  right  to  procure  women,  who  are  abso- 
lutely necessary  to  its  preservation  ;  and  if  its  neighbours,  who 
have  a  redundancy  of  females,  refuse  to  give  some  of  them  in 
marriage  to  those  men,  the  latter  may  justly  have  recourse 
to  force.  We  have  a  famous  example  of  this  in  the  rape  of  the 
Sabine  women.*  But,  though  a  nation  is  allowed  to  procure 
for  itself,  even  by  force  of  arms,  the  liberty  of  obtaining 
women  in  marriage,  no  woman  in  particular  can  be  constrained 
in  her  choice,  nor  become,  by  right,  the  wife  of  a  man  who 
carries  her  off  by  force — a  circumstance  which  has  not  been 
attended  to  by  those  who  have  decided,  without  restriction, 
that  the  Romans  did  not  commit  an  act  of  injustice  on  that  oc- 
casion, f  It  is  true  that  the  Sabine  women  submitted  to  their 
fate  with  a  good  grace ;  and,  when  their  nation  took  up  arms 
to  avenge  them,  it  sufficiently  appeared,  from  the  ardour  with 
which  those  women  rushed  between  the  combatants,  that  they 
willingly  acknowledged  the  Romans  for  their  lawful  husbands. 

"We  may  further  add,  that,  if  the  Romans,  as  many  pretend, 
were  originally  only  a  band  of  robbers  united  under  Romulus, 
they  did  not  form  a  true  nation,  or  a  legitimate  state ;  the  [  180  ] 
neighbouring  nations  had  a  just  right  to  refuse  them  women ; 
and  the  law  of  nature,  which  approves  no  civil  society  but 
such  as  is  legitimate,  did  not  require  them  to  furnish  that 
society  of  vagabonds  and  robbers  with  the  means  of  perpetu- 
ating itself;  much  less  did  it  authorize  the  latter  to  procure 
those  means  by  force.  In  the  same  manner,  no  nation  was 
obliged  to  furnish  the  Amazons  with  males.  That  nation  of 
women,  if  it  ever  existed,  put  itself,  by  its  own  fault,  out  of  a 
condition  to  support  itself  without  foreign  assistance. 

The  right  of  passage  is  also  a  remnant  of  the  primitive  state  §  ills.  Right 
of  communion,  in  which  the  entire  earth  was  common  to  all of  passage, 
mankind,  and  the  passage  was  everywhere  free  to  each  indi-^120^ 
vidual  according  to  his  necessities.     Nobody  can  be  entirely 
deprived  of  this  right  (§  117) ;  but  the  exercise  of  it  is  limited 
by  the  introduction  of  domain  and  property :  since  they  have 
been  introduced,  we  cannot  exert  that  right  without  paying 
due  regard  to  the  private  rights  of  others.     The  effect  of  pro- 
perty is,  to  give  the  proprietor's  advantage  a  preference  over 
that  of  all  others.     When,  therefore,  the  owner  of  a  territory 
thinks  proper  to  refuse  you  admission  into  it,  you  must,  in 
order  to  enter  it  in  spite  of  him,  have  some  reason  more 

*  Livy,  book  i.  and   states   that  the  law  of  humanity 
f  Wolfii  Jus  Gent.  g  341.  does  not  seem  to  oblige  us  to  grant  pas- 
(120)  See  fully  1  Chitty's  Com.  L.,  84 ;  sage  to  any  other  goods  except  such  as  are 
Grotius,  book  ii.  chap.  ii.  p.  153,  states  absolutely  necessary  for  the  purpose  of 
that  a  nation  is  bound  to  grant  free  pas-  their  life  to  whom  they  are  thus   con- 
sage  without  reserve  or  discretion.    But  veyed. — Puff,  book  iii.  chap.   iii.  §   6, 
Puffendorf  appears  to  agree  with  Vattel,  p.  29. 

35  273 


180  EIGHTS    WHICH    BELONG    TO    ALL   NATIONS. 

BOOK  n.  cogent  than  all  his  reasons  to  the  contrary.  Such  is  the  right 
- CHAP-  1X:_  Of  necessity :  this  authorizes  an  act  on  your  part,  which  on 
other  occasions  would  be  unlawful,  viz.  a,n  infringement  of  the 
right  of  domain.  When  a  real  necessity  obliges  you  to  enter 
into  the  territory  of  others, — for  instance,  if  you  cannot  other- 
wise escape  from  imminent  danger,  or  if  you  have  no  other 
passage  for  procuring  the  means  of  subsistence,  or  those  of 
satisfying  some  other  indispensable  obligation, — you  may 
force  a  passage  when  it  is  unjustly  refused.  But,  if  an  equal 
necessity  obliges  the  proprietor  to  refuse  you  entrance,  he 
refuses  it  justly ;  and  his  right  is  paramount  to  yours.  Thus, 
a  vessel  driven  by  stress  of  weather  has  a  right  to  enter,  even 
by  force,  into  a  foreign  port.  But,  if  that  vessel  is  affected 
with  the  plague,  the  owner  of  the  port  may  fire  upon  it  and 
beat  it  off,  without  any  violation  either  of  justice,  or  even  of 
charity,  which,  in  such  a  case,  ought  doubtless  to  begin  at  home. 

1 124.  and  of     The  right  of  passage  through  a  country  would  in  most  cases 
procuring     ke  useless,  without  that  of  procuring  necessaries  at  a  fair 
necessaries,  ^^ .  an(j  we  kave  ajrea(jy  Sn0wn  (§  120)  that  in  case  of  ne- 
cessity it  is  lawful  to  take  provisions  even  by  force. 

1 125.  Right      In  speaking  of  exile  and  banishment,  we  have  observed 
of  dwelling  (B00k  I.  §§  229—231)  that  every  man  has  a  right  to  dwell 
to »f"*el8B  somewhere  upon  earth.     What  we  have  shown  with  respect 

to  individuals  may  be  applied  to  whole  nations.  If  a  people 
are  driven  from  the  place  of  their  abode,  they  have  a  right  to 
seek  a  retreat :  the  nation  to  which  they  make  application 
ought  then  to  grant  them  a  place  of  habitation,  at  least  for  a 
time,  if  she  has  not  very  important  reasons  for  a  refusal. 
But,  if  the  country  inhabited  by  this  nation  is  scarcely  suffi- 
cient for  herself,  she  is  under  no  obligation  to  allow  a  band 
of  foreigners  to  settle  in  it  for  ever :  she  may  even  dismiss 
[  181  ]  them  at  once,  if  it  be  not  convenient  to  her  to  grant  them  a 
permanent  settlement.  As  they  have  the  resource  of  seek- 
ing an  establishment  elsewhere,  they  cannot  claim  any  autho- 
rity from  the  right  of  necessity,  to  stay  in  spite  of  the  owners 
of  the  country.  But  it  is  necessary,  in  short,  that  these 
fugitives  should  find  a  retreat ;  and,  if  everybody  rejects 
them,  they  will  be  justifiable  in  making  a  settlement  in  the 
first  country  where  they  find  land  enough  for  themselves, 
without  depriving  the  inhabitants  of  what  is  sufficient  for 
them.  But,  even  in  this  case,  their  necessity  gives  them  only 
the  right  of  habitation ;  and  they  are  bound  to  submit  to  all 
the  conditions,  not  absolutely  intolerable,  which  may  be  im- 
posed on  them  by  the  master  of  the  country, — such  as  pay- 
ing him  tribute,  becoming  his  subjects,  or  at  least  living  under 
his  protection,  and,  in  certain  respects,  depending  on  him. 
This  right,  as  well  aS  the  two  preceding,  is  a  remnant  of  the 
primitive  state  of  communion. 

g  126.  We  have  been  occasionally  obliged  to  anticipate  the  subject 

Things  of     Of  tne  present  chapter,  in  order  to  follow  the  order  of  the 

274 


EIGHTS  WHICH   BELONG   TO   ALL   NATIONS.  181 

different  subjects  that  presented  themselves.  Thus,  in  speak-  BOOK  n. 
ing  of  the  open  sea,  we  have  remarked  (Book  I.  §  281)  that  CHAP-  IX' 
those  things,  the  use  of  which  is  inexhaustible,  cannot  fall  wl»ch  the 
under  the  domain  or  property  of  any  one ;  because,  in  that  J^^g1" 
free  and  independent  state  in  which  nature  has  produced 
them,  they  may  be  equally  useful  to  all  men.  And,  as  to 
those  things  even  which  in  other  respects  are  subject  to  do- 
main, if  their  use  is  inexhaustible,  they  remain  common  with 
respect  to  that  use.  Thus  a  river  may  be  subject  both  to  do- 
main and  empire ;  but,  in  quality  of  running  water,  it  remains 
common, — that  is  to  say,  the  owner  of  the  river  cannot  hin- 
der any  one  from  drinking  and  drawing  water  out  of  it. 
Thus,  the  sea,  even  in  those  parts  that  are  held  in  possession, 
being  sufficient  for  the  navigation  of  all  mankind,  he  who  has 
the  domain  cannot  refuse  a  passage  through  it  to  any  vessel 
from  which  he  has  nothing  to  fear.  But  it  may  happen,  by 
accident,  that  this  inexhaustible  use  of  the  thing  may  be 
justly  refused  by  the  owner,  when  people  cannot  take  advan- 
tage of  it  without  incommoding  him  or  doing  him  a  prejudice. 
For  instance,  if  you  cannot  come  to  my  river  for  water  without 
passing  over  my  land  and  damaging  the  crop  it  bears,  I  may  for 
that  reason  debar  you  from  the  inexhaustible  use  of  the  running 
water :  in  which  case,  it  is  but  through  accident  you  are  de- 
prived of  it.  This  leads  us  to  speak  of  another  right  which 
has  a  great  connection  with  that  just  mentioned,  and  is  even 
derived  from  it ;  that  is,  the  right  of  innocent  use. 

We  call  innocent  use,  or  innocent  advantage,  that  which  §  127.  Right 
may  be  derived  from  a  thing  without  causing  either  loss  or  of  innocent 
inconvenience  to  the  proprietor;  and  the  right  of  innocent™*' 
use  is  the  right  we  have  to  that  advantage  or  use  which  may 
be  made  of  things  belonging  to  another,  without  causing  him 
either  loss  or  inconvenience.     I  have  said  that  this  right  is 
derived  from  the  right  to  things  of  which  the  use  is  inex- 
haustible.    In  fact,  a  thing  that  may  be  useful  to  any  one  [  182  ] 
without  loss  or  inconvenience  to  the  owner,  is,  in  this  respect, 
inexhaustible  in  the  use ;  and  that  is  the  reason  why  the  law 
of  nature  still  allows  all  men  a  right  to  it  notwithstanding 
the  introduction  of  domain  and  property.     Nature,  who  de- 
signs her  gifts  for  the  common  advantage  of  mankind,  does  not 
allow  us  to  prevent  the  application  of  those  gifts  to  a  useful 
purpose  which  they  may  be  made  to  serve  without  any  preju- 
dice to  the  proprietor,  and  without  any  diminution  of  the 
utility  and  advantages  he  is  capable  of  deriving  from  his  rights. 

This  right  of  innocent  use  is  not  a  perfect  right,  like  that  ?  128.    Na- 
of  necessity :  for,  it  belongs  to  the  owner  to  judge  whether ture  of  this 
the  use  we  wish  to  make  of  a  thing  that  belongs  to  him  will  [JJ 
not  be  attended  with  damage  or  inconvenience.     If  others 
should  presume  to  decide  on  the  occasion,  and,  in  case  of  re- 
fusal, to  compel  the  proprietor,  he  would  be  no  longer  master 
of  his  own  property.     It  may  frequently  happen  that  the 

275 


182  BIGHTS   WHICH   BELONG   TO   ALL   NATIONS. 

BOOK  n.  person  who  wishes  to  derive  advantage  from  a  thing  shall 
CHAP,  ix.  ^eem  tke  uge  Qf  -t  perfectiy  innocent,  though  it  is  not  so  in 
fact ;  and  if,  in  such  case,  he  attempts  to  force  the  proprietor, 
he  exposes  himself  to  the  risk  of  committing  an  act  of  injus- 
tice; nay,  he  actually  commits  one,  since  he  infringes  the 
owner's  right  to  judge  of  what  is  proper  to  be  done  on  the 
occasion.  In  all  cases,  therefore,  which  admit  of  any  doubt, 
we  have  only  an  imperfect  right  to  the  innocent  use  of  things 
that  belong  to  others. 

1 129.  and  But,  when  the  innocence  of  the  use  is  evident,  and  abso- 
in  cases  not  lutely  indubitable,  the  refusal  is  an  injury.  For,  in  addition 
doubtful.  f.0  a  manifest  violation  of  the  rights  of  the  party  by  whom 
that  innocent  use  is  required,  such  refusal  is  moreover  a  tes- 
timony of  an  injurious  disposition  of  hatred  or  contempt  for 
him.  To  refuse  a  merchant-ship  the  liberty  of  passing  through 
a  strait,  to  fishermen  that  of  drying  their  nets  on  the  sea- 
shore, or  of  watering  at  a  river,  is  an  evident  infringement 
of  the  right  they  have  to  the  innocent  use  of  things  in  those 
cases.  But  in  every  case,  if  we  are  not  pressed  by  necessity, 
we  may  ask  the  owner  his  reasons  for  the  refusal,  and  if  he 
gives  none,  we  may  consider  him  as  an  unjust  man ;  or  an 
enemy,  with  whom  we  are  to  act  according  to  the  rules  of 
prudence.  In  general,  we  should  regulate  our  sentiments  and 
conduct  towards  him,  according  to  the  greater  or  lesser  weight 
of  the  reasons  on  which  he  acts. 

g  130.   Ex-      All  nations  do  therefore  still  retain  a  general  right  to  the 
ercise  of  this  innocent  use  of  things  that  are  under  the  domain  of  any  one 
individual  nation.     But,  in  the  particular  application  of  this 
tions.          right?  it  is  the  nation  in  whom  the  property  is  vested  that  is 
to  determine  whether  the  use  which  others  Avish  to  make  of 
what  belongs  to  her  be  really  innocent:  and,  if  she  gives 
them  a  denial,  she  ought  to  allege  her  reasons ;  as  she  must 
not  deprive  others  of  their  right  from  mere  caprioe.     All  this 
is  founded  in  justice :  for,  it  must  be  remembered  that  the 
innocent  use  of  things  is  not  comprehended  in  the  domain,  or 
[  183  ]  the  exclusive  property.     The  domain  gives  only  the  right  of 
judging,  in  particular  cases,  whether  the  use  be  really  inno- 
cent.    Now,  he  who  judges  ought  to  have  his  reasons ;  and 
he  should  mention  them,  if  he  would  have  us  think  that  he 
forms  any  judgment,  and  not  that  he  acts  from  caprice  or  ill- 


nature.  All  this,  I  say,  is  founded  in  justice.  In  the  next 
chapter,  we  shall  see  the  line  of  conduct  which  a  nation  is, 
by  her  duty  to  other  nations,  bound  to  observe  in  the  exer- 
cise of  her  rights. 


276 


HOW  A  NATION  IS  TO   USE   HER   BIGHT   OP  DOMAIN.  183 


BOOK  II. 
CHAP.   X. 


CHAP.  X. 

HOW  A  NATION  IS  TO  USE  HER  RIGHT  OF  DOMAIN,  IN  ORDER 
TO  DISCHARGE  HER  DUTIES  TOWARDS  OTHER  NATIONS,  WITH 
RESPECT  TO  THE  INNOCENT  USE  OF  THINGS. 

SINCE  the  law  of  nations  treats  as  well  of  the  duties  of  I  isi.  Ge- 
states  as  of  their  rights,  it  is  not  sufficient  that  we  have  ex-  n®r^  duty 
plained,  on  the  subject  of  innocent  use,  what  all  nations  have  ^0 
a  right  to  require  from  the  proprietor :  we  are  now  to  con- 
sider what  influence  his  duties  to  others  ought  to  have  on  the 
proprietor's  conduct.  As  it  belongs  to  him  to  judge  whether 
the  use  be  really  innocent,  and  not  productive  of  any  detri- 
ment or  inconvenience  to  himself,  he  ought  not  to  give  a  re- 
fusal unless  it  be  grounded  upon  real  and  substantial  reasons : 
this  is  a  maxim  of  equity  :  he  ought  not  even  to  stop  at  trifles, 
— a  slight  loss,  or  any  little  inconvenience  :  humanity  forbids 
this  ;  and  the  mutual  love  which  men  owe  to  each  other,  re- 
quires greater  sacrifices.  It  would  certainly  be  too  great  a 
deviation  from  that  universal  benevolence  which  ought  to  unite 
the  human  race,  to  refuse  a  considerable  advantage  to  an  in- 
dividual, or  to  a  whole  nation,  whenever  the  grant  of  it  might 
happen  to  be  productive  of  the  most  trifling  loss  or  the  slight- 
est inconvenience  to  ourselves.  In  this  respect,  therefore,  a 
nation  ought  on  all  occasions  to  regulate  her  conduct  by  rea- 
sons proportioned  to  the  advantages  and  necessities  of  others, 
and  to  reckon  as  nothing  a  small  expense  or  a  supportable 
inconvenience,  when  great  good  will  thence  result  to  another 
nation.  But  she  is  under  no  obligation  to  incur  heavy  ex- 
penses or  embarrassments,  for  the  sake  of  furnishing  others 
with  the  use  of  any  thing,  when  such  use  is  neither  necessary 
nor  of  any  great  utility  to  them.  The  sacrifice  we  here  require 
is  not  contrary  to  the  interests  of  the  nation : — it  is  natural 
to  think  that  the  others  will  behave  in  the  same  manner  in 
return  ;  and  how  great  the  advantages  that  will  result  to  all 
states  from  such  a  line  of  conduct ! 

The  introduction  of  property  cannot  be  supposed  to  have  §  132.   in- 
deprived  nations  of  the  general  right  of  traversing  the  earth  nocent  pas- 
for  the  purposes  of  mutual  intercourse,  of  carrying  on  com-  sase-  (m) 
merce  with  each  other,  and  for  other  just  reasons.     It  is  only 
on  particular  occasions,  when  the  owner  of  a  country  thinks 
it  would  be  prejudicial  or  dangerous  to  allow  a  passage  through  [  184  ] 
it,  that  he  ought  to  refuse  permission  to  pass.     He  is  there- 
fore bound  to  grant  a  passage  for  lawful  purposes,  whenever 
he  can  do  it  without  inconvenience  to  himself.     And  he  can- 

(121)  See,  in  general,  1  Chitty's  Com.  Law,  84,  88. 

Y  277 


184  HOW  A   NATION   IS   TO  USE   HER   RIGHT   OF   DOMAIN. 

BOOK  n.  not  lawfully  annex  burdensome  conditions  to  a  permission 
,  CHAP"  *'  which  he  is  obliged  to  grant,  and  which  he  cannot  refuse  if  he 
wishes  to  discharge  his  duty,  and  not  abuse  his  right  of  pro- 
perty. The  count  of  Lupfen  having  improperly  stopped 
some  merchandise  in  Alsace,  and  complaints  being  made  on 
the  subject  to  the  emperor  Sigismund,  who  was  then  at  the 
council  of  Constance,  that  prince  assembled  the  electors, 
princes,  and  deputies  of  towns,  to  examine  the  affair.  The 
opinion  of  the  burgrave  of  Nuremberg  deserves  to  be  men- 
tioned: "God,"  said  he,  "has  created  heaven  for  himself 
and  his  saints,  and  has  given  the  earth  to  mankind,  intending 
it  for  the  advantage  of  the  poor  as  well  as  of  the  rich.  The 
roads  are  for  their  use,  and  God  has  not  subjected  them  to  any 
taxes."  He  condemned  the  count  of  Lupfen  to  restore  the 
merchandise,  and  to  pay  costs  and  damages,  because  he  could 
not  justify  his  seizure  by  any  peculiar  right.  The  emperor 
approved  this  opinion,  and  passed  sentence  accordingly.* 
§  133.  Sure-  But,  if  any  apprehension  of  danger  arise  from  the  grant 
re*  uked  b<>  °^  l^erty  to  Pass  tnrouga  a  country,  the  state  has  a  right  to 
require  sureties  :  the  party  who  wishes  to  pass  cannot  refuse 
them,  a  passage  being  only  so  far  due  to  him  as  it  is  attended 
with  no  inconvenience. 

§  134.    Pas-     In  like  manner,  a  passage  ought  also  to  be  granted  for 

sage  of  mer-  merchandise  :  and,  as  this  is  in  general  productive  of  no  in- 

(122)  1S6'      convenience,  to  refuse  it  without  just  reason  is  injuring   a 

nation,  and  endeavouring  to  deprive  her  of  the  means  of  car- 

rying on  a  trade  with  other  states.     If  this  passage  occasions 

any  inconvenience,  any  expense  for  the  preservation  of  canals 

and  highways,  we  may  exact  a  compensation  for  it  by  toll 

duties  (Book  I.  §  103). 

g  135.  Resi-      In  explaining  the  effects  of  domain  we  have  said  above 


the  entrance  into  it,  or  permit  it  on  such  conditions  as  he 
thinks  proper.  We  were  then  treating  of  his  external  right, 
—  that  right  which  foreigners  are  bound  to  respect.  But  now 
that  we  are  considering  the  matter  in  another  view,  and  as  it 
relates  to  his  duties  and  to  his  internal  right,  we  may  venture 
to  assert  that  he  cannot,  without  particular  and  important 
reasons,  refuse  permission,  either  to  pass  through  or  reside 
in  the  country,  to  foreigners  who  desire  it  for  lawful  purposes. 
For,  their  passage  or  their  residence  being  in  this  case  an  in- 
nocent advantage,  the  law  of  nature  does  not  give  him  a  right 
to  refuse  it  :  and,  though  other  nations  and  other  men  in  ge- 
neral are  obliged  to  submit  to  his  judgment  (§§  128  and  130), 
he  does  not  the  less  offend  against  his  duty,  if  he  refuses 
without  sufficient  reason  :  he  then  acts  without  any  true  right  ; 
he  only  abuses  his  external  right.  He  cannot,  therefore, 

*  Stettler,  vol.  i.  p.  114.     Tschudi,        (122)  Puffendorf,   b.    3,  ch.    3,    s.  6, 
vol.  ii.  pp.  27,  28.  p.  29. 

278 


HOW  A   NATION  IS   TO    USE   HER   RIGHT   OF   DOMAIN.  185 

without  some  particular  and  cogent  reason,  refuse  the  liberty    BOOK  n. 
of  residence  to  a  foreigner  who  comes  into  the  country  with  — HAP'  x'.. 
the  hope  of  recovering  his  health,  or  for  the  sake  of  acquir- 
ing instruction  in  the  schools  and  academies.     A  difference 
in  religion  is  not  a  sufficient  reason  to  exclude  him,  provided  he 
do  not  engage  in  controversial  disputes  with  a  view  to  dissemi- 
nate his  tenets :  for,  that  difference  does  not  deprive  him  of 
the  rights  of  humanity. 

"We  have  seen  (§  125)  how  the  right  of  necessity  may  in  $  ise.  HOW 
certain  cases  authorize  a  people,  who  are  driven  from  the we  are  to 
place  of  their  residence,  to  settle  in  the  territory  of  another  *ct  t°ward3 
nation.  Every  state  ought,  doubtless,  to  grant  to  so  unf or- .J^1  desire 
tunate  a  people  every  aid  and  assistance  which  she  can  be-  a  perpetual 
stow  without  being  wanting  to  herself:  but  to  grant  them  an  residence, 
establishment  in  the  territories  of  the  nation,  is  a  very  deli- 
cate step,  the  consequences  of  which  should  be  maturely  con- 
sidered by  the  conductor  of  the  state.  The  emperors  Probus 
and  Valens  experienced  the  evil  effects  of  their  conduct  in 
having  admitted  into  the  territories  of  the  empire  numerous 
bands  of  Gepidse,  Vandals,  Goths,  and  other  barbarians.* 
If  the  sovereign  finds  that  such  a  step  would  be  attended 
with  too  great  an  inconvenience  or  danger,  he  has  a  right  to 
refuse  an  establishment  to  those  fugitive  people,  or  to  adopt, 
on  their  admission,  every  precaution  that  prudence  can  dic- 
tate to  him.  One  of  the  safest  will  be,  not  to  permit  those 
foreigners  to  reside  together  in  the  same  part  of  the  country, 
there  to  keep  up  the  form  of  a  separate  nation.  Men  who 
have  not  been  able  to  defend  their  own  country,  cannot  pre- 
tend to  any  right  to  establish  themselves  in  the  territory  of 
another,  in  order  to  maintain  themselves  there  as  a  nation  in 
a  body.f  The  sovereign  who  harbours  them  may  therefore 
disperse  them,  and  distribute  them  into  the  towns  and  pro- 
vinces that  are  in  want  of  inhabitants.  In  this  manner  his 
charity  will  turn  to  his  own  advantage,  to  the  increase  of  his 
power,  and  to  the  greater  benefit  of  the  state.  What  a  dif- 
ference is  observable  in  Brandenburg  since  the  settlement  of 
the  French  refugees  !  The  great  elector,  Frederic  William, 
offered  an  asylum  to  those  unfortunate  people ;  he  provided 
for  their  expenses  on  the  road,  and  with  truly  regal  munifi- 
cence established  them  in  his  states ;  by  which  conduct  that 
beneficent  and  generous  prince  merited  the  title  of  a  wise 
and  able  politician. 

When,  by  the  laws  or  the  custom  of  a  state,  certain  actions  §  isr.  Right 
are  generally  permitted  to  foreigners,  as,  for  instance,  tra-  accruing 

*  Vopiscus,  Prob.  c.  xviii. — Ammian.  seized,  that  it  was  not  just  for  them  to 

Marcell.  lib.  xxxi. — Socrat.  Hist  Eccles.  invade  the  territories  of    others,  since 

lib.  iv.  c.  28.  they  had  not  been  able  to  defend  their 

f   Caasar   replied   to   the    Tenchtheri  own. — Neque  verum  ease,  qui  suos  fines 

and   Usipetos,    who    wanted    to   retain  tueri  non  potnerint,  alienos  occupare.   De 

possession  of  the   territories  they  had  Bello  Gallico,  lib.  iv.  cap.  vi. 

279 


J85  HOW   A  NATION   IS   TO   USE   HER   RIGHT   OF   DOMAIN. 

BOOK  ii.  veiling  freely  through  the  country  without  any  express  per- 
CHAP'  x-  mission,  marrying  there,  buying  or  selling  merchandise,  hunt- 
from  a  ge-  ~mg^  fishing,  &c.,  we  cannot  exclude  any  one  nation  from  the 
mission01""  benefit  of  the  general  permission,  without  doing  her  an  in- 
f  186  1  Jury'  un^ess  there  be  some  particular  and  lawful  reason  for 
J  refusing  to  that  nation  what  is  granted  indiscriminately  to 
others.  The  question  here,  it  is  to  be  observed,  only  relates 
to  those  actions  which  are  productive  of  innocent  advantage: 
and,  as  the  nation  allows  them  to  foreigners  without  distinc- 
tion, she,  by  the  very  nature  of  that  general  permission,  af- 
fords a  sufficient  proof  that  she  deems  them  innocent  with 
respect  to  herself;  which  amounts  to  a  declaration  that  fo- 
reigners have  a  right  to  them  (§  127) :  the  innocence  of  such 
acts  is  manifested  by  the  confession  of  the  state ;  and  the 
refusal  of  an  advantage  that  is  manifestly  innocent,  is  an  in- 
jury (§  129).  Besides,  to  attempt  without  any  reason  to  lay 
one  nation  under  a  prohibition  where  an  indiscriminate  per- 
mission is  enjoyed  by  all  others,  is  an  injurious  distinction, 
since  it  can  only  proceed  from  hatred  or  contempt.  If  there 
be  any  particular  and  well-founded  reason  for  the  exception, 
the  advantage  resulting  from  the  act  in  question  can  no  longer 
be  deemed  an  innocent  one  with  respect  to  the  excepted  na- 
tion ;  consequently  no  injury  is  done  to  them.  The  state 
may  also,  by  way  of  punishment,  except  from  the  general 
permission  a  people  who  have  given  her  just  cause  of  com- 
plaint. 

g  138.  A  As  to  rights  of  this  nature  granted  to  one  or  more  nations 
right  grant-  for  particular  reasons,  they  are  conferred  on  them  as  favours, 
ed  as  a  fa-  ejther  by  treaty,  or  through  gratitude  for  some  particular  ser- 
vice :  those  to  whom  the  same  rights  are  refused  cannot  con- 
sider themselves  as  offended.  The  nation  does  not  esteem 
the  advantage  accruing  from  those  acts  to  be  an  innocent  one, 
since  she  does  not  indiscriminately  allow  them  to  all  nations : 
and  she  may  confer  on  whom  she  pleases  any  rights  over  her 
own  property,  without  affording  just  grounds  to  anybody  else, 
either  for  uttering  a  complaint,  or  forming  pretensions  to  the 
same  favour. 

g  139.  The  Humanity  is  not  confined  to  the  bare  grant  of  a  permission 
nation  ought  to  foreign  nations  to  make  an  innocent  use  of  what  belongs 
to  be  cour-  ^Q  ug .  ft  moreover  requires  that  we  should  even  facilitate  to 
them  the  means  of  deriving  advantage  from  it,  so  far  as  we 
can  do  this  without  injury  to  ourselves.  Thus,  it  becomes  a 
well-regulated  state  to  promote  the  general  establishment  of 
inns  where  travellers  may  procure  lodging  and  food  at  a  fair 
price, — to  watch  over  their  safety, — and  to  see  that  they  be 
treated  with  equity  and  humanity.  A  polite  nation  should 
give  the  kindest  reception  to  foreigners,  receive  them  with 
politeness,  and  on  every  occasion  show  a  disposition  to  oblige 
them.  By  these  means  every  citizen,  while  he  discharges  his 
duty  to  mankind  in  general,  will  at  the  same  time  render 


OF   USUCAPTION   AND   PRESCRIPTION  AMONG   NATIONS.  186 

essential  services  to  his  country.     Glory  is  the  certain  reward    BOOK  n. 
of  virtue ;  and  the  good-will  which  is  gained  by  an  amia-    CHAP>  *' 
ble  character,  is  often  productive  of  consequences  highly  im- 
portant to  the  state.     No  nation  is  entitled  to  greater  praise 
in  this  respect  than  the  French :  foreigners  nowhere  meet  a 
reception  more  agreeable,  or  better  calculated  to  prevent  their 
regretting  the  immense  sums  they  annually  spend  at  Paris. 


CHAP.  XI.  [  187  ] 

OF   USUCAPTION  AND   PRESCRIPTION  AMONG  NATIONS.  (123)      CHAP-  "• 

LET  us  conclude  what  relates  to  domain  and  property  with 
an  examination  of  a  celebrated  question  on  which  the  learned 
a^  much  divided.  It  is  asked  whether  usueaption  and  pre- 
scription can  take  place  between  independent  nations  and 
states. 

Usueaption  is  the  acquisition  of  domain  founded  on  a  long  g  140.  De- 
possession,  uninterrupted  and  undisputed — that  is  to  say,  fiction  of 
an  acquisition  solely  proved  by  this  possession.  Wolf  defines 
it,  an  acquisition  of  domain  founded  on  a  presumed  desertion. 
His  definition  explains  the  manner  in  which  a  long  and  peace- 
able possession  may  serve  to  establish  the  acquisition  of  do- 
main. Modestinus,  Digest,  lib.  3,  de  Usurp,  et  Usucap.,  says, 
in  conformity  to  the  principles  of  the  Roman  law,  that  usu- 
eaption is  the  acquisition  of  domain  by  possession  continued 
during  a  certain  period  prescribed  by  law.  These  three  defi- 
nitions are  by  no  means  incompatible  with  each  other ;  and 
it  is  easy  to  reconcile  them  by  setting  aside  what  relates  to 
the  civil  law  in  the  last  of  the  three.  In  the  first  of  them, 
we  have  endeavoured  clearly  to  express  the  idea  commonly 
affixed  to  the  term  usueaption. 

Prescription  is  the  exclusion  of  all  pretensions  to  a  right — 
an  exclusion  founded  on  the  length  of  time  during  which  that 
right  has  been  neglected  :  or,  according  to  Wolf's  definition, 
it  is  the  loss  of  an  inherent  right  by  virtue  of  a  presumed 
consent.  This  definition,  too,  is  just;  that  is,  it  explains 
how  a  right  may  be  forfeited  by  long  neglect ;  and  it  agrees 
with  the  nominal  definition  we  give  of  the  term,  prescription, 
in  which  we  confine  ourselves  to  the  meaning  usually  annexed 
to  the  word.  As  to  the  rest,  the  term  usueaption  is  but  lit- 
tle used  in  French ;  and  the  word  prescription  implies,  in  that 

(123)  We  have  seen  that  twenty  years'  creates  a  right.  See  ante,  125  to  127 ; 
undisturbed  possession  or  enjoyment  of  and  see  Jlenest  v.  Pipon,  Knapp's  Rep. 
an  easement  or  profit  amongst  nations,  60  to  73 ;  where  see  the  law  of  nations 
as  well  as  amongst  private  individuals,  fully  examined. — C. 

36  Y2  281 


187  OP   USUCAPTION  AND   PRESCRIPTION   AMONG   NATIONS. 

BOOK  ii.    language,  every  thing  expressed  by  the  Latin  terms  umcapio 
CHAP,  xi.  an(j  prsescriptj0 ;  wherefore  we  shall  make  use  of  the  word 
prescription  wherever  we  have  not  particular  reasons  for  em- 
ploying the  other. 

§  141.  Usu-     Now,  to  decide  the  question  we  have  proposed,  we  must 

caption  and  first  see  whether  usucaption  and  prescription  are  derived  from 

prescription  tj^  jaw  Of  nature.     Many  illustrious  authors  have  asserted 

tbTiaw  of    and  proved  them  to  he  so.*     .f  hough  in  this  treatise  we  fre- 

nature.        quently  suppose  the  reader  acquainted  with  the  law  of  nature, 

it  is  proper  in  this  place  to  establish  the  decision,  since  the 

affair  is  disputed. 

Nature  has  not  herself  established  a  private  property  over 
any  of  her  gifts,  and  particularly  over  land;  she  only  ap- 
proves its  establishment,  for  the  advantage  of  the  human 
[  188  ]  race.  On  this  ground,  then,  it  would  be  absurd  to  suppose, 
that,  after  the  introduction  of  domain  and  property,  the  law 
of  nature  can  secure  to  a  proprietor  any  right  capable  of  in- 
troducing disorder  into  human  society.  Such  would  be  the 
right  of  entirely  neglecting  a  thing  that  belongs  to  him, — of 
leaving  it  during  a  long  space  of  time  under  all  the  appear- 
ances of  a  thing  utterly  abandoned  or  not  belonging  to  him, — 
and  of  coming  at  length  to  wrest  it  from  a  bona  fide  possessor, 
who  has  perhaps  dearly  purchased  his  title  to  it, — who  has 
received  it  as  an  inheritance  from  his  progenitors,  or  as  a  por- 
tion with  his  wife, — and  who  might  have  made  other  acquisi- 
tions, had  he  been  able  to  discover  that  the  one  in  question 
was  neither  solid  nor  lawful.  Far  from  giving  such  a  right, 
the  law  of  nature  lays  an  injunction  on  the  proprietor  to  take 
care  of  his  property,  and  imposes  on  him  an  obligation  to 
make  known  his  rights,  that  others  may  not  be  led  into  error : 
it  is  on  these  conditions  alone  that  she  approves  of  the  pro- 
perty vested  in  him,  and  secures  him  in  the  possession.  If 
he  has  neglected  it  for  such  a  length  of  time  that  he  cannot 
now  be  admitted  to  reclaim  it  without  endangering  the  rights 
of  others,  the  law  of  nature  will  no  longer  allow  him  to  re- 
vive and  assert  his  claims.  We  must  not  therefore  conceive 
the  right  of  private  property  to  be  a  right  of  so  extensive 
and  imprescriptible  a  nature,  that  the  proprietor  may,  at  the 
risk  of  every  inconvenience  thence  resulting  to  human  society, 
absolutely  neglect  it  for  a  length  of  time,  and  afterwards  re- 
claim it,  according  to  his  caprice.  With  what  other  view  than 
that  of  the  peace,  the  safety,  and  the  advantage  of  human 
society,  does  the  law  of  nature  ordain  that  all  men  should 
respect  the  right  of  private  property  in  him  who  makes  use 
of  it  ?  For  the  same  reason,  therefore,  the  same  law  requires 
that  every  proprietor  who  for  a  long  time  and  without  any 
just  reason  neglects  his  right,  should  be  presumed  to  have 

*  See  Grotius  de  Jure  Belli  et  Pacis,     Gent.  lib.  iv.  cap.  xii.— and  especially 
lib.  ii.  cap.  iv. — Puffendorf,  Jus  Nat.  et    Wolfius,  Jus  Nat.  part  iii.  cap.  vii. 
282 


OF   USUCAPTION  AND   PRESCRIPTION  AMONG   NAilONS.  188 


entirely  renounced  and  abandoned  it.     This  is  what  forms  the    BOOK  "• 

absolute  presumption  (juris  et  de  jure)  of  its  abandonment, 

a  presumption,  upon  which  another  person  is  legally  entitled 
to  appropriate  to  himself  the  thing  so  abandoned.  The  ab- 
solute presumption  does  not  here  signify  a  conjecture  of  the 
secret  intentions  of  the  proprietor,  but  a  maxim  which  the 
law  of  nature  ordains  should  be  considered  as  true  and  inva- 
riable,— and  this  with  a  view  of  maintaining  peace  and  order 
among  men.  Such  presumption  therefore  confirms  a  title  as 
firm  and  just  as  that  of  property  itself,  and  established  and 
supported  by  the  same  reasons.  The  bona  fide  possessor, 
resting  his  title  on  a  presumption  of  this  kind,  has,  then,  a 
right  which  is  approved  by  the  law  of  nature ;  and  that  law, 
which  requires  that  the  rights  of  each  individual  should  be 
stable  and  certain,  does  not  allow  any  man  to  disturb  him  in 
his  possession. 

The  right  of  usucaption  properly  signifies  that  the  bona 
fide  possessor  is  not  obliged  to  suffer  his  right  of  property  to 
be  disputed  after  a  long-continued  and  peaceable  possession 
on  his  part :  he  proves  that  right  by  the  very  circumstance 
of  possession,  and  sets  up  the  plea  of  prescription  in  bar  to  [  189  ] 
the  claims  of  the  pretended  proprietor.  Nothing  can  be  more 
equitable  than  this  rule.  If  the  claimant  were  permitted 
to  prove  his  property,  he  might  happen  to  bring  proofs 
very  convincing  indeed  in  appearance,  but,  in  fact,  deriving 
all  their  force  only  from  the  loss  or  destruction  of  some  docu- 
ment or  deed  which  would  have  proved  how  he  had  either 
lost  or  transferred  his  right.  Would  it  be  reasonable  that  he 
should  be  allowed  to  call  in  question  the  rights  of  the  pos- 
sessor, when  by  his  own  fault  he  has  suffered  matters  to  pro- 
ceed to  such  a  state  that  there  would  be  danger  of  mistaking 
the  truth  ?  If  it  be  necessary  that  one  of  the  two  should  be 
exposed  to  lose  his  property,  it  is  just  it  should  be  the  party 
who  is  in  fault. 

It  is  true,  that,  if  the  bona  fide  possessor  should  discover, 
with  perfect  certainty,  that  the  claimant  is  the  real  proprie- 
tor, and  has  never  abandoned  his  right,  he  is  bound  in  con- 
science, and  by  the  internal  principles  of  justice,  to  make 
restitution  of  whatever  accession  of  wealth  he  has  derived 
from  the  property  of  the  claimant.  But  this  estimation  is 
not  easily  made ;  and  it  depends  on  circumstances. 

As  prescription  cannot  be  grounded  on  any  but  an  abso-  ?  I42-  Whai 
lute  or  lawful  presumption,  it  has  no  foundation,  if  the  pro-  found|jJ^J 
prietor  has  not  really  neglected  his  right.     This  condition  fo/JJ^Jy 
implies  three  particulars :  1,  that  the  proprietor  cannot  allege  prescription 
an  invincible  ignorance,  either  on  his  own  part,  or  on  that  of 
the  persons  from  whom  he  derives  his  right ; — 2,  that  he  can- 
not justify  his  silence  by  lawful  and  substantial  reasons ; — 3, 
that  he  has  neglected  his  right,  or  kept  silence  during  a  con- 
siderable number  of  years :  for,  the  negligence  of  a  few  years, 

283 


189  OF  USUCAPTION  AND   PRESCRIPTION  AMONG  NATIONS. 

BOOK  IL  being  incapable  of  producing  confusion  and  rendering  doubt- 
CHAP.  xi.  £u|  £ke  respective  rights  of  the  parties,  is  not  sufficient  to 
found  or  authorize  a  presumption  of  relinquishment.  It  is 
impossible  to  determine  by  the  law  of  nature  the  number  of 
years  required  to  found  a  prescription :  this  depends  on  the 
nature  of  the  property  disputed,  and  the  circumstances  of 
the  case. 

§  143.  im-  What  we  have  remarked  in  the  preceding  section,  relates 
TeTcriUion  to  ordinary  prescription.  There  is  another  called  immemo- 
°n'  rial,  because  it  is  founded  on  immemorial  possession, — that 
is,  on  a  possession,  the  origin  of  which  is  unknown,  or  so 
deeply  involved  in  obscurity,  as  to  allow  no  possibility  of  prov- 
ing whether  the  possessor  has  really  derived  his  right  from 
the  original  proprietor,  or  received  the  possession  from  another. 
This  immemorial  prescription  secures  the  possessor's  right, 
beyond  the  power  of  recovery :  for,  it  affords  a  legal  pre- 
sumption that  he  is  the  proprietor,  as  long  as  the  adverse  party 
fails  to  adduce  substantial  reasons  in  support  of  his  claim : 
and,  indeed,  whence  could  these  reasons  be  derived,  since  the 
origin  of  the  possession  is  lost  in  the  obscurity  of  time  ?  It 
ought  even  to  secure  the  possessor  against  every  pretension 
contrary  to  his  right.  What  would  be  the  case  were  it  per- 
mitted to  call  in  question  a  right  acknowledged  time  immemo- 
rial, when  the  means  of  proving  it  were  destroyed  by  time  ? 
Immemorial  possession,  therefore,  is  an  irrefragable  title,  and 
[  190  ]  immemorial  prescription  admits  of  no  exception :  both  are 
founded  on  a  presumption  which  the  law  of  nature  directs  us 
to  receive  as  an  incontestable  truth. 

2  144.  In  cases  of  ordinary  prescription,  the  same  argument  can- 

Claimant  ai-  not  be  used  against  a  claimant  who  alleges  just  reasons  for 
leging  rea-  nis  silence,  as,  the  impossibility  of  speaking,  or  a  well-founded 

Sence*  *"*  ^ear'  ^C">  ^ecause  t^iere  *s  tnen  no  longer  any  room  for  a  pre- 
sumption that  he  has  abandoned  his  right.    It  is  not  his  fault 
if  people  have  thought  themselves  authorized  to  form  such  a 
presumption ;  nor  ought  he  to  suffer  in  consequence :  he  can- 
not therefore  be  debarved  the  liberty  of  clearly  proving  his 
property.     This  method  of  defence  in  bar  of  prescription  has 
been  often  employed  against  princes  whose  formidable  power 
had  long  silenced  the  feeble  victims  of  their  usurpations. 
g  145.   Pro-     It  is  also  very  evident  that  we  cannot  plead  prescription 
prietor  suf-  jn  opposition  to  a  proprietor  who,  being  for  the  present  un- 
showto»       a^e  to  prosecute  his  right,  confines  himself  to  a  notification, 
thaUwMioes  by  any  token  whatever,  sufficient  to  show  that  it  is  not  his 
not  mean  to  intention  to  abandon  it.    Protests  answer  this  purpose.    With 
abandon  his  sovereigns  it  is  usual  to  retain  the  title  and  arms  of  a  sove- 
reignty or  a  province,  as  an  evidence  that  they  do  not  relin- 
quish their  claims  to  it. 

i  146.  Pre-  Every  proprietor  who  expressly  commits,  or  omits,  certain 
ecription  acts,  which  he  cannot  commit  or  omit  without  renouncing  his 
founded  on  right,  sufficiently  indicates  by  such  commission  or  omission 

284 


OF   USUCAPTION  AND   PRESCRIPTION   AMONG   NATIONS.  190 

that  it  is  not  his  intention  to  preserve  it,  unless,  by  an  express    BOOK  n. 
reservation,  he  declare  the  contrary.     We  are  undoubtedly  CttAP<  XI' 


authorized  to  consider  as  true  what  he  sufficiently  manifests  the  actions 
on  occasions  where  he  ought  to  declare  the  truth :  conse-  °rie  " 
quently,  we  may  lawfully  presume  that  he  abandons  his  right ; 
and,  if  he  would  afterwards  resume  it,  we  can  plead  prescrip- 
tion in  bar  to  his  claim. 

After  having  shown  that  usucaption  and  prescription  are  §  147.  Usu- 
founded  in  the  law  of  nature,  it  is  easy  to  prove  that  they  caption  and 
are  equally  a  part  of  the  law  of  nations,  and  ought  to  take  prescription 
place  between  different  states.     For,  the  law  of  nations  is  but  bttweeiTna- 
the  law  of  nature  applied  to  nations  in  a  manner  suitable  to  tions. 
the  parties  concerned  (Prelim.  §  6).    And  so  far  is  the  nature 
of  the  parties  from  affording  them  an  exemption  in  the  case, 
that  usucaption  and  prescription  are  much  more  necessary 
between  sovereign  states  than  between  individuals.      Their 
quarrels  are  of  much  greater  consequence ;  their  disputes  are 
usually  terminated  only  by  bloody  wars ;  and  consequently 
the  peace  and  happiness  of  mankind  much  more  powerfully 
require  that  possession  on  the  part  of  sovereigns  should  not 
be  easily  disturbed, — and  that,  if  it  has  for  a  considerable 
length  of  time  continued  uncontested,  it  should  be  deemed 
just  and  indisputable.    Were  we  allowed  to  recur  to  antiquity 
on  every  occasion,  there  are  few  sovereigns  who  could  enjoy 
their  rights  in  security,  and  there  would  be  no  peace  to  be 
hoped  for  on  earth. 

It  must  however  be  confessed,  that,  between  nations,  the  §  148.  More 
rights  of  usucaption  and  prescription  are  often  more  difficult difficult  be- 
in  their  application,  so  far  as  they  are  founded  on  a  presump-t^*gllt"ar~ 
tion  drawn  from  long  silence.     Nobody  is  ignorant  how  dan-  found  them 
gerous  it  commonly  is  for  a  weak  state  even  to  hint  a  claim  on  a  pre'- 
to  the  possessions  of  a  powerful  monarch.     In  such  a  case,  B*ni$a*$ 
therefore,  it  is  not  easy  to  deduce  from  long  silence  a  legal des 
presumption  of  abandonment.     To  this  we  may  add,  that,  as  [  191  ] 
the  ruler  of  the  society  has  usually  no  power  to  alienate 
what  belongs  to  the  state,  his  silence,  even  though  sufficient  to 
afford  a  presumption  of  abandonment  on  his  own  part,  can- 
not impair  the  national  right  or  that  of  his  successors.     The 
question  then  will  be,  whether  the  nation  has  neglected  to 
supply  the  omission  caused  by  the  silence  of  her  ruler,  or  has 
participated  in  it  by  a  tacit  approbation. 

But  there  are  other  principles  that  establish  the  use  and  1 149.  Other 
force  of  prescription  between  nations.     The  tranquillity  of  principles 
the  people,  the  safety  of  states,  the  happiness  of  the  human  thrfscerf?rc< 
race,  do  not  allow  that  the  possessions,  empire,  and  other  ticn?"1* 
rights  of  nations  should  remain  uncertain,  subject  to  dispute, 
and  ever  ready  to  occasion  bloody  wars.     Between  nations, 
therefore,  it  becomes  necessary  to  admit  prescription  founded 
on  length  of  time  as  a  valid  and  incontestable  title.     If  any 
nation  has  kept  silence  through  fear,  and  as  it  were  through 

285 


191  OF   USUCAPTION   AND   PRESCRIPTION  AMONG   NATIONw. 

BOOK  n.  necessity,  the  loss  of  her  right  is  a  misfortune  which  she  ought 
,  CHAP-  XI"  patiently  to  bear,  since  she  could  not  avoid  it:  and  why  should 
she  not  submit  to  this  as  well  as  to  have  her  towns  and  pro- 
vinces taken  from  her  by  an  unjust  conqueror,  and  to  be 
forced  to  cede  them  to  him  by  treaty  ?  It  is,  however,  only 
in  cases  of  long-continued,  undisputed,  and  uninterrupted 
possession,  that  prescription  is  established  on  these  grounds, 
because  it  is  necessary  that  affairs  should  some  time  or  other 
be  brought  to  a  conclusion,  and  settled  on  a  firm  and  solid 
foundation.  But  the  case  is  different  with  a  possession  of 
only  a  few  years'  continuance,  during  which  the  party  whose 
rights  are  invaded  may  from  prudential  reasons  find  it  expe- 
dient to  keep  silence,  without  at  the  same  time  affording 
room  to  accuse  him  of  suffering  things  to  become  uncertain, 
and  of  renewing  quarrels  without  end. 

As  to  immemorial  prescription,  what  we  have  said  respect- 
ing it  (§  143)  is  sufficient  to  convince  every  one  that  it  ought 
necessarily  to  take  place  between  nations. 

g  150.  Ef-  Usucaption  and  prescription  being  so  necessary  to  the  tran- 
fects  of  the  quillity  and  happiness  of  human  society,  it  is  justly  presumed 
voluntary  ^j.  a}}  nations  have  consented  to  admit  the  lawful  and  rea- 
t^°0^igsonable  use  of  them,  with  a  view  to  the  general  advantage, 
subject.  and  even  to  the  private  interest  of  each  individual  nation. 

Prescription  of  many  years'  standing,  as  well  as  usucap- 
tion,  is,  then,  established  by  the  voluntary  law  of  nations 
(Prelim.  §  21). 

Nay,  more,  as  by  virtue  of  that  law  nations  are,  in  all 
doubtful  cases,  supposed  to  stand  on  a  footing  of  equal  right 
in  treating  with  each  other  (ibid.),  prescription,  when  founded 
on  long  undisputed  possession,  ought  to  have  its  full  effect 
between  nations,  without  admitting  any  allegation  of  the  pos- 
[  192  ]  session  being  unjust,  unless  the  evidence  to  prove  it  be  very 
clear  and  convincing  indeed.  For,  without  such  evidence, 
every  nation  is  to  be  considered  as  a  bona  fide  possessor. 
Such  is  the  right  that  a  sovereign  state  ought  to  allow  to 
other  states ;  but  to  herself  she  should  only  allow  the  use  of 
the  internal  and  necessary  right  (Prelim.  §  28).  It  is  the 
bona  fide  possessor  alone  whose  prescription  will  stand  the 
test  of  conscience. 

1 151.   Law     Since  prescription  is  subject  to  so  many  difficulties,  it  would 
of  treaties    ^e  very  pr0per  that  adjoining  nations  should  by  treaty  adopt 
in  this"8  °m  some  rule  on  th*8  subject,  particularly  with  respect  to  the 
matter.        number  of  years  required  to  found  a  lawful  prescription,  since 
this  latter  point  cannot  in  general  be  determined  by  the  law 
of  nature  alone.     If,  in  default  of  treaties,  custom  has  de- 
termined any  thing  in  this  matter,  the  nations  between  whom 
this  custom  is  in  force,  ought  to  conform  to  it  (Prelim.  §  26). 


286 


OF   TKEATIES   OF   ALLIANCE,    ETC.  192 


BOOK  n. 

CHAP.    XII. 


CHAP.  XII. 

OF   TREATIES   OF  ALLIANCE,   AND   OTHER   PUBLIC   TREA- 
TIES. (124) 

THE  subject  of  treaties  is  undoubtedly  one  of  the  most  im-  §  152.   Na- 
portant  that  the  mutual  relations  and  affairs  of  nations  can ture  of  teea- 
present  us  with.     Having  but  too  much  reason  to  be  con-*168*^  24 
vinced  of  the  little  dependence  that  is  to  be  placed  on  the 
natural  obligations  of  bodies  politic,  and  on  the  reciprocal 
duties  imposed  upon  them  by  humanity, — the  most  prudent 
nations  endeavour  to  procure  by  treaties  those  succours  and 
advantages  which  the  law  of  nature  would  insure  to  them,  if 
it  were  not  rendered  ineffectual  by  the  pernicious  counsels  of 
a  false  policy. 

A  treaty,  in  Latin  fcedus,  is  a  compact  made  with  a  view 
to  the  public  welfare  by  the  superior  power,  either  for  per- 
petuity, or  for  a  considerable  time. 

The  compacts  which  have  temporary  matters  for  their  ob-  §  us.   pac- 
ject  are  called  agreements,  conventions,  and  pactions.    They  tions,  agree- 
are  accomplished  by  one  single  act,  and  not  by  repeated  acts.  ments>  or 
These  compacts  are  perfected  in  their  execution  once  for  all : 
treaties  receive  a  successive  execution  whose  duration  equals 
that  of  the  treaty. 

Public  treaties  can  only  be  made  by  the  superior  powers,  ?  154.   By 
by  sovereigns,  who  contract  in  the  name  of  the  state.     Thus,  ^hom  trea- 
conventions,  made  between  sovereigns  respecting  their  owntiesare 
private  affairs,  and  those  between  a  sovereign  and  a  private 
person,  are  not  public  treaties. 

The  sovereign  who  possesses  the  full  and  absolute  authority 
has,  doubtless,  a  right  to  treat  in  the  name  of  the  state  he 
represents ;  and  his  engagements  are  binding  on  the  whole 
nation.  But  all  rulers  of  states  have  not  a  power  to  make 
public  treaties  by  their  own  authority  alone  :  some  are  obliged 
to  take  the  advice  of  a  senate,  or  of  the  representatives  of  the  [  193  ] 
nation.  It  is  from  the  fundamental  laws  of  each  state  that 
we  must  learn  where  resides  the  authority  that  is  capable  of 
contracting  with  validity  in  the  name  of  the  state. 

Notwithstanding  our  assertion  above,  that  public  treaties 
are  made  only  by  the  superior  powers,  treaties  of  that  nature 
may  nevertheless  be  entered  into  by  princes  or  communities, 
who  have  a  right  to  contract  them,  either  by  the  concession 
of  the  sovereign,  or  by  the  fundamental  laws  of  the  state,  by 
particular  reservations,  or  by  custom.  Thus,  the  princes  and 

(124)  See  in  general,  as  to  the  law  47;  and,  as  to  commercial  treaties  in 
of  nations  respecting  treaties,  post,  particular,  53,  and  615  to  630 ;  and  see 
Book  IV.  Chap.  II.  Ac.,  page  432  to  each  separate  treaty,  2  Chitty's  Com. 
452,  1  Chitty's  Commercial  Law,  38  to  Law,  p.  183. 

287 


193  OF  TREATIES  OF  ALLIANCE. 


IAP.    XII. 


BOOK  n.  free  cities  of  Germany,  though  dependent  on  the  emperor 
"*  .  and  the  empire,  have  the  right  of  forming  alliances  with  foreign 
powers.  The  constitutions  of  the  empire  give  them,  in  this 
as  in  many  other  respects,  the  rights  of  sovereignty.  Some 
cities  of  Switzerland,  though  subject  to  a  prince,  have  made 
alliances  with  the  cantons :  the  permission  or  toleration  of 
the  sovereign  has  given  birth  to  such  treaties,  and  long  custom 
has  established  the  right  to  contract  them. 
?  155.  Who-  As  a  state  that  has  put  herself  under  the  protection  of  an- 
ther a  state  Q^er,  has  not  on  tha^.  account  forfeited  her  character  of  sove- 
tectionPmay  reigntj  (Book  I.  §  192),  she  may  make  treaties  and  contract 
make  trea-  alliances,  unless  she  has,  in  the  treaty  of  protection,  expressly 
ties.  renounced  that  right.  But  she  continues  for  ever  after  bound 

by  this  treaty  of  protection,  so  that  she  cannot  enter  into  any 
engagements  contrary  to  it, — that  is  to  say,  engagements 
which  violate  the  express  conditions  of  the  protection,  or  that 
are  in  their  own  nature  repugnant  to  every  treaty  of  protec- 
tion. Thus,  the  protected  state  cannot  promise  assistance  to 
the  enemies  of  her  protector,  nor  grant  them  a  passage, 
g  156.  Trea-  Sovereigns  treat  with  each  other  through  the  medium  of 
ties  con-  agents  or  proxies  who  are  invested  with  sufficient  powers  for 
the  purpose,  and  are  commonly  called  plenipotentiaries.  To 
their  office  we  may  apply  all  the  rules  of  natural  law  which 
tiaries.  respect  things  done  by  commission.  The  rights  of  the  proxy 
are  determined  by  the  instructions  that  are  given  him :  he 
must  not  deviate  from  them ;  but  every  promise  which  he 
makes  in  the  terms  of  his  commission,  and  within  the  extent 
of  his  powers,  is  binding  on  his  constituent. 

At  present,  in  order  to  avoid  all  danger  and  difficulty, 
princes  reserve  to  themselves  the  power  of  ratifying  what  has 
been  concluded  upon  in  their  name  by  their  ministers.  The 
plenipotentiary  commission  is  but  a  procuration  cum  lilera. 
If  this  commission  were  to  have  its  full  effect,  they  could  not 
be  too  circumspect  in  giving  it.  But,  as  princes  cannot  other- 
wise than  by  force  of  arms  be  compelled  to  fulfil  their  engage- 
ments, it  is  customary  to  place  no  dependence  on  their  treaties, 
till  they  have  agreed  to  and  ratified  them.  Thus,  as  every 
agreement  made  by  the  minister  remains  invalid  till  sanctioned 
by  the  prince's  ratification,  there  is  less  danger  in  vesting  him 
with  unlimited  powers.  But,  before  a  prince  can  honourably 
[  194  ]  refuse  to  ratify  a  compact  made  in  virtue  of  such  plenipoten- 
tiary commission,  he  should  be  able  to  allege  strong  and  sub- 
stantial reasons,  and,  in  particular,  to  prove  that  his  minister 
has  deviated  from  his  instructions. 

g  157.  Va-  A  treaty  is  valid  if  there  be  no  defect  in  the  manner  in 
lidity  of  which  it  has  been  concluded :  and  for  this  purpose  nothing 
treaties.  more  can  be  required  than  a  sufficient  power  in  the  contract- 
ing parties,  and  their  mutual  consent  sufficiently  declared. 
J  158.  in-  An  injury  cannot,  then,  render  a  treaty  invalid.  He  who 
jury  does  enters  into  engagements  ought  carefully  to  weigh  every  thing 

288 


AND  OTHER  PUBLIC  TREATIES.  194 

before  he  concludes  them ;  he  may  do  what  he  pleases  with    BOOK  IT. 
his  own  property,  forego  his  rights,  and  renounce  his  advan-  CHAP,  xir. 
tages,  as  he  thinks  proper ;  the  acceptor  is  not  obliged  to  in-  not  render 
quire  into  his  motives,  and  to  estimate  their  due  weight.  If  we  them  void, 
might  recede  from  a  treaty  because  we  found  ourselves  injured 
by  it,  there  would  be  no  stability  in  the  contracts  of  nations. 
Civil  laws  may  set  bounds  to  injury,  and  determine  what  de- 
gree of  it  shall  be  capable  of  invalidating  a  contract.  But  sove- 
reigns are  subject  to  no  superior  judge.  How  shall  they  be  able 
to  prove  the  injury  to  each  other's  satisfaction  ?     Who  shall 
determine  the  degree  of  it  sufficient  to  invalidate  a  treaty  ? 
The  peace  and  happiness  of  nations  manifestly  require  that 
their  treaties  should  not  depend  on  so  vague  and  dangerous  a 
plea  of  invalidity. 

A  sovereign  nevertheless  is  in  conscience  bound  to  pay  a  §  159.  Duty 
regard  to  equity,  and  to  observe  it  as  much  as  possible  in  allof.natlonsm 
his  treaties.     And,  if  it  happens  that  a  treaty  which  he  has  *  l  resPect- 
concluded  with  upright  intentions,  and  without  perceiving  any 
unfairness  in  it,  should  eventually  prove  disadvantageous  to 
an  ally,  nothing  can  be  more  honourable,  more  praiseworthy, 
more  conformable  to  the  reciprocal  duties  of  nations,  than  to 
relax  the  terms  of  such  treaty  as  far  as  he  can  do  it  consist- 
ently with  his  duty  to  himself,  and  without  exposing  himself 
to  danger,  or  incurring  a  considerable  loss. 

Though  a  simple  injury,  or  some  disadvantage  in  a  treaty,  §  160.  Nul- 
be  not  sufficient  to  invalidate  it,  the  case  is  not  the  same  with  ^x  of  trea- 
those  inconveniences  that  would  lead  to  the  ruin  of  the  nation,  j^f  ^mf* 
Since,  in  the  formation  of  every  treaty,  the  contracting  parties  cious  to  the 
must  be  vested  with  sufficient  powers  for  the  purpose,  a  treaty  state, 
pernicious  to  the  state  is  null,  and  not  at  all  obligatory,  as  no  [  195  ] 
conductor  of  a  nation  has  the  power  to  enter  into  engage- 
ments to  do  such  things  as  are  capable  of  destroying  the  state, 
for  whose  safety  the  government  is  intrusted  to  him.     The 
nation  itself,  being  necessarily  obliged  to  perform  every  thing 
required  for  its  preservation  and  safety  (Book  I.  §  16,  &c.), 
cannot  enter  into  engagements  contrary  to  its  indispensable 
obligations.     In  the  year  1506,  the   states-general  of  the 
kingdom  of  France,  assembled  at  Tours,  engaged  Louis  XII. 
to  break  the  treaty  he  had  concluded  with  the  emperor  Maxi- 
milian and  the  archduke  Philip,  his  son,  because  that  treaty 
was   pernicious   to   the  kingdom.      They  also  decided  that 
neither  the  treaty,  nor  the  oath  that  had  accompanied  it, 
could  be  binding  on  the  king,  who  had  no  right  to  alienate 
the  property  of  the  crown.*     We  have  treated  of  this  latter 
source  of  invalidity  in  the  twenty-first  chapter  of  Book  I. 

For  the  same  reason — the  want  of  sufficient  powers — a  §  161.  Nul- 
treaty  concluded  for  an  unjust  or  dishonest  purpose  is  abso-^y  oftrea- 
lutely  null  and  void,— nobody  having  a  right  to  engage  to  do 

*  See  the  French  historians. 
37  Z  289 


195  OP  TREATIES  OF  ALLIANCE, 

BOOK  n.  things  contrary  to  the  law  of  nature.  Thus,  an  offensive 
CHAP,  xii.  alliance,  made  for  the  purpose  of  plundering  a  nation  from 
or  dishonest  whom  no  injury  has  been  received,  may  or  rather  ought  to  be 
purpose.  broken. 

§  162.  Whe-      It  is  asked,  whether  it  be  allowable  to  contract  an  alliance 
ther  an  alh-  wjth  a  nation  that  does  not  profess  the  true  religion,  and 
contracted  C  wnether  treaties  made  with  the  enemies  of  the  faith  are  valid, 
with  those    Grotius  has  treated  this  subject  at  large  :*  and  the  discussion 
who  do  not  might  have  been  necessary  at  a  time  when  party -rage  still 
profess  the  obscured  those  principles  which  it  had  long  caused  to  be  for- 
gion*61'       gotten  ;  but  we  may  venture  to  believe  that  it  would  be  super- 
fluous in  the  present  age.     The  law  of  nature  alone  regulates 
the  treaties  of  nations  :  the  difference  of  religion  is  a  thing 
absolutely  foreign  to  them.     Different  people  treat  with  each 
other  in  quality  of  men,  and  not  under  the  character  of  Chris- 
tians, or  of  Mohammedans.  Their  common  safety  requires  that 
they  should  be  capable  of  treating  with  each  other,  and  of 
treating  with  security.     Any  religion  that  should  in  this  case 
clash  with  the  law  of  nature,  would,  on  the  very  face  of  it, 
wear  the  stamp  of  reprobation,  and  could  not  pretend  to  derive 
its  origin  from  the  great  Author  of  nature,  who  is  ever  steady, 
ever  consistent  with  himself.     But,  if  the  maxims  of  a  religion 
tend  to  establish  it  by  violence,  and  to  oppress  all  those  who 
will  not  embrace  it,  the  law  of  nature  forbids  us  to  favour 
that  religion,  or  to  contract  any  unnecessary  alliances  with 
[  196  ]  its  inhuman  followers,  and  the  common  safety  of  mankind 
invites  them  rather  to  enter  into  an  alliance  against  such  a 
people, — to  repress  such  outrageous  fanatics,  who  disturb  the 
public  repose  and  threaten  all  nations. 

§  163.  Obli-  Jt  is  a  settled  point  in  natural  law,  that  he  who  has  made 
observirf  a  Prom^se  *°  anJ  one  ^as  conferred  upon  him  a  real  right  to 
require  the  thing  promised, — and,  consequently,  that  the 
breach  of  a  perfect  promise  is  a  violation  of  another  person's 
right,  and  as  evidently  an  act  of  injustice  as  it  would  be  to 
rob  a  man  of  his  property.  The  tranquillity,  the  happiness, 
the  security  of  the  human  race,  wholly  depend  on  justice, — 
on  the  obligation  of  paying  a  regard  to  the  rights  of  others. 
The  respect  which  others  pay  to  our  rights  of  domain  and 
property  constitutes  the  security  of  our  actual  possessions ; 
the  faith  of  promises  is  our  security  for  things  that  cannot 
be  delivered  or  executed  upon  the  spot.  There  would  no 
longer  be  any  security,  no  longer  any  commerce  between 
mankind,  if  they  did  not  think  themselves  obliged  to  keep 
faith  with  each  other,  and  to  perform  their  promises.  This 
obligation  is,  then,  as  necessary  as  it  is  natural  and  indubita- 
ble, between  nations  that  live  together  in  a  state  of  nature, 
and  acknowledge  no  superior  upon  earth,  to  maintain  order 
and  peace  in  their  society.  Nations,  therefore,  and  their  con- 

*  De  Jure  Belli  et  Pads.  lib.  ii.  cap.  xv.  §  8,  et  seq. 
290 


AND    OTHER   PUBLIC   TREATIES.  196 

ductors,  ought  inviolably  to  observe  their  promises  and  their  BOOK  n. 
treaties.  This  great  truth,  though  too  often  neglected  in  CHAP-  XIt- 
practice,  is  generally  acknowledged  by  all  nations  :*  the  re- 
proach of  perfidy  is  esteemed  by  sovereigns  a  most  atrocious 
affront ;  yet  he  who  does  not  observe  a  treaty  is  certainly 
perfidious,  since  he  violates  his  faith.  On  the  contrary,  no- 
thing adds  so  great  a  glory  to  a  prince,  and  to  the  nation  he 
governs,  as  the  reputation  of  an  inviolable  fidelity  in  the  per- 
formance of  promises.  By  such  honourable  conduct,  as  much 
or  even  more  than  by  her  valour,  the  Swiss  nation  has  ren- 
dered herself  respectable  throughout  Europe,  and  is  de- 
servedly courted  by  the  greatest  monarchs  who  intrust  their 
personal  safety  to  a  body-guard  of  her  citizens.  The  parlia- 
ment of  England  has  more  than  once  thanked  the  king  for 
his  fidelity  and  zeal  in  succouring  the  allies  of  his  crown. 
This  national  magnanimity  is  the  source  of  immortal  glory ; 
it  presents  a  firm  basis  on  which  nations  may  build  their  con- 
fidence ;  and  thus  it  becomes  an  unfailing  source  of  power 
and  splendour. 

As  the  engagements  of  a  treaty  impose  on  the  one  hand  a  §  154.  The 
perfect  obligation,  they  produce  on  the  other  a  perfect  right,  violation  of 
The  breach  of  a  treaty  is  therefore  a  violation  of  the  perfect a  treatv  .is 
right  of  the  party  with  whom  we  have  contracted  ;  and  this  ^s^e  ° 
is  an  act  of  injustice  against  him. 

A  sovereign  already  bound  by  a  treaty  cannot  enter  into  §155.  Trea- 
others  contrary  to  the  first.      The  things  respecting  which  ties  cannot 
he  has  entered  into  engagements  are  no  longer  at  his  disposal.  be  made 
If  it  happens  that  a  posterior  treaty  be  found,  in  any  parti-  ^T^rea 
cular  point,  to  clash  with  one  of  more  ancient  date,  the  new  dy  existing 
treaty  is  null  and  void  with  respect  to  that  point,  inasmuch  as 
it  tends  to  dispose  of  a  thing  that  is  no  longer  in  the  power  of 
him  who  appears  to  dispose  of  it.     (We  are  here  to  be  under- 
stood as  speaking  of  treaties  made  with  different  powers.) 
If  the  prior  treaty  is  kept  secret,  it  would  be  an  act  of  con- 
summate perfidy  to  conclude  a  contrary  one,  which  may  be 
rendered  void  whenever  occasion  serves.     Nay,  even  to  enter 
into  engagements,  which,  from  the  eventual  turn  of  affairs, 
may  chance  at  a  future  day  to  militate  against  the  secret 
treaty,  and  from  that  very  circumstance  to  prove  ineffectual 
and  nugatory,  is  by  no  means  justifiable,  unless  we  have  the 
ability  to  make  ample  compensation  to  our  new  ally :  other- 
wise it  would  be  practising  a  deception  on  him,  to  promise  him 
a  thing  without  informing  him  that  cases  may  possibly  occur 
which  will  not  allow  us  to  substantiate  our  promise.     The  ally 
thus  deceived  is  undoubtedly  at  liberty  to  renounce  the  treaty : 
but,  if  he  chooses  rather  to  adhere  to  it,  it  will  hold  good  with  [  197  ] 
respect  to  all  the  articles  that  do  not  clash  with  the  prior  treaty. 

»  Mohammed  warmly  recommend-     treaties. — Ockley's  History  of  the  Sa- 
ed  to  his  disciples  the  observance  of     racens,  vol.  i. 

291 


197  OF  TREATIES  OF  ALLIANCE, 

BOOK  ii.  There  is  nothing  to  prevent  a  sovereign  from  entering  into 
CHAP,  xn.  engagements  of  the  same  nature  with  two  or  more  nations,  if 
§  166.  How  he  be  able  to  fulfil  those  several  engagements  to  his  different 
treaties  may  allies  at  the  same  time.  For  instance,  a  commercial  treaty 
beconcluded  wj^h  one  nation  does  not  deprive  us  of  the  liberty  of  afterwards 
nations  with  contracting  similar  engagements  with  other  states,  unless  we 
the  same  have,  in  the  former  treaty,  bojmd  ourselves  by  a  promise  not 
view.  to  grant  the  same  advantages  to  any  other  nation.  We  may 

in  the  same  manner  promise  to  assist  two  different  allies  with 
troops,  if  we  are  able  to  furnish  them,  or  if  there  is  no  pro- 
bability that  both  will  have  occasion  for  them  at  the  same  time. 
§167.  The       If  nevertheless  the  contrary  happens,  the  more  ancient 
more  an-      a]iy  js  entitled  to  a  preference  :  for,  the  engagement  was  pure 
entitled  to  a  a      absolute  with  respect  to  him ;  whereas  we  could  not  con- 
preference,   tract  with  the  more  recent  ally,  without  a  reservation  of  the 
rights  of  the  former.     Such  reservation  is  founded  in  justice, 
and  is  tacitly  understood,  even  if  not  expressly  made. 
§168.  We        The  justice  of  the  cause  is  another  ground  of  preference 
owe  no  as-    Detween  two  allies.     We  ought  even  to  refuse  assistance  to 
an  unjust     *ne  one  wnose  cause  is  unjust,  whether  he  be  at  war  with  one 
war.  of  our  allies,  or  with  another  state :  to  assist  him  on  such 

occasion,  would  in  the  event  be  the  same  thing  as  if  we  had 
contracted  an  alliance  for  an  unjust  purpose ;  which  we  are 
not  allowed  to  do  (§  161).  No  one  can  be  validly  engaged 
to  support  injustice. 

§169.  Ge-  Grotius  divides  treaties  into  two  general  classes, — first, 
n.eral  ^1V1"  those  which  turn  merely  on  things  to  which  the  parties  were 
ties!  °  Ea~  already  bound  by  the  law  of  nature, — secondly,  those  by 
which  they  enter  into  further  engagements.*  By  the  former 
1.  Those  we  acquire  a  perfect  right  to  things  to  which  we  before  had 
that  felate  only  an  imperfect  right,  so  that  we  may  thenceforward  de- 

to  things  al-        J  ,  r     ,  i         i_    /•  -i  j         i 

ready  due  mand  as  our  due  what  before  we  could  only  request  as  an 
by  the  law  office  of  humanity.  Such  treaties  became  very  necessary  be- 
of  nature,  tween  the  nations  of  antiquity,  who,  as  we  have  already  ob- 
served, did  not  think  themselves  bound  to  any  duty  towards 
people  who  were  not  in  the  number  of  their  allies.  They 
are  useful  even  between  the  most  polished  nations,  in  ord 
the  better  to  secure  the  succours  they  may  expect, — to  deter- 
mine the  measure  and  degree  of  those  succours,  and  to  show 
on  what  they  have  to  depend, — to  regulate  what  cannot  in 
general  be  determined  by  the  law  of  nature, — and  thus  to 
obviate  all  difficulties,  by  providing  against  the  various  inter- 
pretations of  that  law.  Finally,  as  no  nation  possesses  inex- 
haustible means  of  assistance,  it  is  prudent  to  secure  to  our- 
selves a  peculiar  right  to  that  assistance  which  cannot  be 
granted  to  all  the  world. 

To  this  first  class  belong  all  simple  treaties  of  peace  and 
friendship,  when  the  engagements  which  we  thereby  contract 

*  De  Jure  Belli  et  Pacis,  lib.  ii.  cap.  xv.  §  5 
292 


•b- 

ds 

I 


AND    OTHEE   PUBLIC   TREATIES.  198 

make  no  addition  to  those  duties  that  men  owe  to  each  other  BOOK  n. 
as  brethren  and  as  members  of  the  human  society  :  such  are  CHAP,  xn. 
those  treaties  that  permit  commerce,  passage,  &c. 

If  the  assistance  and  offices  that  are  due  by  virtue  of  such  §  170.  Col- 
a  treaty  should  on  any  occasion  prove  incompatible  with  the  lision  of 
duties  a  nation  owes  to  herself,  or  with  what  the  sovereign  t!iese  .trea" 
owes  to  his  own  nation,  the  case  is  tacitly  and  necessarily  S™1^11"3 
excepted  in  the   treaty.     For,  neither  the  nation  nor  the  owe  to  our- 
sovereign  could  enter  into  an  engagement  to  neglect  the  care  selves. 
of  their  own  safety,  or  the  safety  of  the  state,  in  order  to 
contribute  to  that  of  their  ally.     If  the  sovereign,  in  order 
to  preserve  his  own  nation,  has  occasion  for  the  things  he 
has  promised  in  the  treaty,  —  if,  for  instance,  he  has  engaged 
to  furnish  corn,  and  in  a  time  of  dearth  he  has  scarcely  suf- 
ficient for  the  subsistence  of  his  subjects,  he  ought  without 
hesitation  to  give  a  preference  to  his  own  nation  ;  for,  it  is 
only  so  far  as  he  has  it  in  his  power  to  give  assistance  to  a 
foreign  nation,  that  he  naturally  owes  such  assistance  ;  and 
it  was  upon  that  footing  alone  that  he  could  promise  it  in  a 
treaty.     Now,  it  is  not  in  his  power  to  deprive  his  own  nation 
of  the  means  of  subsistence  in  order  to  assist  another  nation 
at  their  expense.     Necessity  here  forms  an  exception,  and  he 
does  not  violate  the  treaty,  because  he  cannot  fulfil  it. 

The  treaties  by  which  we  simply  agree  not  to  do  any  evil§m.Trea- 
to  an  ally,  to  abstain,  with  respect  to  him,  from  all  harm,  ties  in  which 

offence,  and  injury,  are  not  necessary,  and  produce  no  new  we  barcly 
.,        '.  •     i  •    •  i      i     i         1      J  /•  promise  to 

right,  since  every  individual  already  possesses  a  perfect  natu-  $0  no  ^ 

ral  right  to  be  exempt  from  harm,  injury,  and  real  offence,  jury. 
Such  treaties,  however,  become  very  useful,  and  accidentally 
necessary,  among  those  barbarous  nations  who  think  they 
have  a  right  to  act  as  they  please  towards  foreigners.  They 
are  not  wholly  useless  with  nations  less  savage,  who,  without 
so  far  divesting  themselves  of  humanity,  entertain  a  much 
less  powerful  sense  of  a  natural  obligation,  than  of  one  which 
they  have  themselves  contracted  by  solemn  engagements  : 
and  would  to  God  that  this  manner  of  thinking  were  entirely 
confined  to  barbarians  !  We  see  too  frequent  effects  of  it 
among  those  who  boast  of  a  perfection  much  superior  to  the 
law  of  nature.  But  the  imputation  of  perfidy  is  prejudicial 
to  the  rulers  of  nations,  and  thus  becomes  formidable  even  to 
those  who  are  little  solicitous  to  merit  the  appellation  of  vir- 
tuous men,  and  who  feel  no  scruple  in  silencing  the  re- 
proaches of  conscience. 

Treaties  by  which  we  contract  engagements  that  were  not  §m.  Trea- 
imposed  on  us  by  the  law  of  nature,  are  either  equal  or  un-  ties  ?on' 


.  t 

Equal  treaties  are  those  in  which  the  contracting  parties  are  not  na- 
promise  the  same  things,  or  things  that  are  equivalent,  or,  turally  due. 
finally,  things  that  are  equitably  proportioned,  so  that  the  Equal 
condition  of  the  parties  is  equal.     Such  is,  for  example,  a    reaties' 

Z2  293 


198  OF  TREATIES    OF   ALLIANCE, 

BOOK  ii.  defensive  alliance,  in  which  the  parties  reciprocally  stipulate 
CHAP,  xii.  for  the  same  succours.  Such  is  an  offensive  alliance,  in 
£  199  ]  which  it  is  agreed  that  each  of  the  allies  shall  furnish  the 
same  number  of  vessels,  the  same  number  of  troops,  of 
cavalry  and  infantry,  or  an  equivalent  in  vessels,  in  troops, 
in  artillery,  or  in  money.  Such  is  also  a  league  in  which 
the  quota  of  each  of  the  allies  is  regulated  in  proportion  to 
the  interest  he  takes  or  may  have  in  the  design  of  the  league. 
Thus,  the  emperor  and  the  king  of  England,  in  order  to  in- 
duce the  states-general  of  the  United  Provinces  to  accede  to 
the  treaty  of  Vienna  of  the  16th  of  March,  1731,  consented 
that  the  republic  should  only  promise  to  her  allies  the  assist- 
ance of  four  thousand  foot  and  a  thousand  horse,  though  they 
engaged,  in  case  of  an  attack  upon  the  republic,  to  furnish 
her,  each,  with  eight  thousand  foot  and  four  thousand  horse. 
"VVe  are  also  to  place  in  the  class  of  equal  treaties  those  which 
stipulate  that  the  allies  shall  consider  themselves  as  embarked 
in  a  common  cause,  and  shall  act  with  all  their  strength. 
Notwithstanding  a  real  inequality  in  their  strength,  they  are 
nevertheless  willing  in  this  instance  to  consider  it  as  equal. 

Equal  treaties  may  be  subdivided  into  as  many  species  as 
there  are  of  different  transactions  between  sovereigns.  Thus, 
they  treat  of  the  conditions  of  commerce,  of  their  mutual 
defence,  of  associations  in  war,  of  reciprocally  granting  each 
other  a  passage,  or  refusing  it  to  the  enemies  of  their  ally ; 
they  engage  not  to  build  fortresses  in  certain  places,  &c.  But 
it. would  be  needless  to  enter  into  these  particulars  :  generals 
are  sufficient,  and  are  easily  applied  to  particular  cases. 
§  173.  Ob-  Nations  being  no  less  obliged  than  individuals  to  pay  a 
ligationof  regard  to  equity,  they  ought,  as  much  as  possible,  to  pre- 
serve  ecluality  in  their  treaties.  When,  therefore,  the  parties 
are  a^le  reciprocally  to  afford  each  other  equal  advantages, 
the  law  of  nature  requires  that  their  treaties  should  be  equal, 
unless  there  exist  some  particular  reason  for  deviating  from 
that  equality, — such,  for  instance,  as  gratitude  for  a  former 
benefit, — the  hope  of  gaining  the  inviolable  attachment  of  a 
nation, — some  private  motive,  which  renders  one  of  the  con- 
tracting parties  particularly  anxious  to  have  the  treaty  con- 
cluded, &c.  Nay,  viewing  the  transaction  in  its  proper  point 
of  light,  the  consideration  of  that  particular  reason  restores 
to  the  treaty  that  equality  which  seems  to  be  destroyed  by 
the  difference  of  the  things  promised. 

I  see  those  pretended  great  politicians  smile,  who  employ 
all  their  subtilty  in  circumventing  those  with  whom  they  treat, 
and  in  so  managing  the  conditions  of  the  treaty,  that  all  the 
advantages  shall  accrue  to  their  masters.  Far  from  blushing 
at  a  conduct  so  contrary  to  equity,  to  rectitude  and  natural 
honesty,  they  glory  in  it,  and  think  themselves  entitled  to  the 
appellation  of  able  negotiators.  How  long  shall  we  continue 
to  see  men  in  public  characters  take  a  pride  in  practices  that 
294 


AND    OTHER   PUBLIC   TREATIES.  199 

would  disgrace  a  private  individual  ?     The  private  man,  if  he    BOOK  n. 
is  void  of  conscience,  laughs  also  at  the  rules  of  morality  and  CHAP,  xu. 
justice  ;  but  he  laughs  in  secret :  it  would  be  dangerous  and 
prejudicial  to  him  to  make  a  public  mockery  of  them.     Men  [  200  ] 
in  power  more  openly  sacrifice  honour  and  honesty  to  present 
advantage :  but,  fortunately  for  mankind,  it  often  happens 
that  such  seeming  advantage  proves  fatal  to  them ;  and  even 
between  sovereigns,  candour  and  rectitude  are  found  to  be 
the  safest  policy.     All  the  subtilties,  all  the  tergiversations 
of  a  famous  minister,  on  the  occasion  of  a  treaty  in  which 
Spain  was  deeply  interested,  turned  at  length  to  his  own 
confusion,  and  to  the  detriment  of  his  master;  while  Eng- 
land, by  her  good  faith  and  generosity  to  her  allies,  gained 
immense  credit,  and  rose  to  the  highest  pitch  of  influence 
and  respectability. 

When  people  speak  of  equal  treaties,  they  have  commonly  §  174.  Dtf. 
in  their  minds  a  double  idea  of  equality,  viz.  equality  in  the  ference  be- 
engagements,  and  equality  in  the  dignity  of  the  contracting  tween  e(lual 
parties.     It  becomes  therefore  necessary  to  remove  all  ambi-  g16^^!) 
guity ;  and  for  that  purpose,  we  may  make  a  distinction  be-  ances. 
tween  equal  treaties  and  equal  alliances.     Equal  treaties  are 
those  in  which  there  is  an  equality  in  the  promises  made,  as 
we  have  above  explained  (§  172) ;  and  equal  alliances,  those 
in  which  equal  treats  with  equal,  making  no  difference  in  the 
dignity  of  the  contracting  parties,  or,  at  least,  admitting  no  too 
glaring  superiority,  but  merely  a  pre-eminence  of  honour  and 
rank.     Thus  kings  treat  with  the  emperor  on  a  footing  of 
equality,  though  they  do  not  hesitate  to  allow  him  precedency; 
thus  great  republics  treat  with  kings  on  the  same  footing, 
notwithstanding  the  pre-eminence  which  the  former  now-a- 
days  yield  to  the  latter.     Thus  all  true  sovereigns  ought  to 
treat  with  the  most  powerful  monarch,  since  they  are  as  really 
sovereigns,  and  as  independent  as  himself.     (See  §  37  of  this 
Book.) 

Unequal  treaties  are  those  in  which  the  allies  do  not  reci-§i75.  un 
procally  promise  to  each  other  the  same  things,  or  things  equal  trea- 
equivalent ;  and  an  alliance  is  unequal  when  it  makes  a  differ- ties  and  )"*• 
ence  in  the  dignity  of  the  contracting  parties.    It  is  true,  that  JJ^j  dh~ 
most  commonly  an  unequal  treaty  will  be  at  the  same  time  an  an' 
unequal  alliance ;  as  great  potentates  are  seldom  accustomed 
to  give  or  to  promise  more  than  is  given  or  promised  to  them, 
unless  such  concessions  be  fully  compensated  in  the  article  of 
honour  and  glory ;  and,  on  the  other  hand,  a  weak  state  does 
not  submit  to  burdensome  conditions  without  being  obliged 
also  to  acknowledge  the  superiority  of  her  ally. 

Those  unequal  treaties  that  are  at  the  same  time  unequal 
alliances,  are  divided  into  two  classes, — the  first  consisting  of 
those  where  the  inequality  prevails  on  the  side  of  the  more  con- 
siderable power, — the  second  comprehending  treaties  where 
the  inequality  is  on  the  side  of  the  inferior  power. 

295 


200  OF  TKEATIES  OF  ALLIANCE, 

BOOK  ii.  Treaties  of  the  former  class,  without  attributing  to  the  more 
CUAV.  xu.  powerful  of  the  contracting  parties  any  right  over  the  weaker, 
simply  allow  him  a  superiority  of  honours  and  respect.  We 
have  treated  of  this  in  Book  I.  §  5.  Frequently  a  great  mo- 
narch, wishing  to  engage  a  weaker  state  in  his  interest,  offers 
(  201  ]  her  advantageous  conditions, — promises  her  gratuitous  suc- 
cours, or  greater  than  he  stimulates  for  himself:  but  at  the 
same  time  he  claims  a  superiority  of  dignity,  and  requires  re- 
spect from  his  ally.  It  is  this  last  particular  which  renders 
the  alliance  unequal :  and  to  this  circumstance  we  must  atten- 
tively advert ;  for,  with  alliances  of  this  nature  we  are  not  to 
confound  those  in  which  the  parties  treat  on  a  footing  of  equal- 
ity, though  the  more  powerful  of  the  allies,  for  particular 
reasons,  gives  more  than  he  receives,  promises  his  assistance 
gratis,  without  requiring  gratuitous  assistance  in  his  turn,  or 
promises  more  considerable  succours,  or  even  the  assistance 
of  all  his  forces : — here  the  alliance  is  equal,  but  the  treaty 
is  unequal,  unless  indeed  we  may  be  allowed  to  say,  that,  as 
the  party  who  makes  the  greater  concessions  has  a  greater 
interest  in  concluding  the  treaty,  this  consideration  restores 
the  equality.  Thus,  at  a  time  when  France  found  herself  em- 
barrassed in  a  momentous  war  with  the  house  of  Austria, 
and  the  cardinal  de  Richelieu  wished  to  humble  that  formi- 
dable power,  he,  like  an  able  minister,  concluded  a  treaty 
with  Gustavus  Adolphus,  in  which  all  the  advantage  appeared 
to  be  on  the  side  of  Sweden.  From  a  bare  consideration  of 
the  stipulations  of  that  treaty,  it  would  have  been  pronounced 
an  unequal  one ;  but  the  advantages  which  France  derived 
from  it,  amply  compensated  for  that  inequality.  The  alliance 
of  France  with  the  Swiss,  if  we  regard  the  stipulations  alone, 
is  an  unequal  treaty ;  but  the  valour  of  the  Swiss  troops  has 
long  since  counterbalanced  that  inequality;  and  the  differ- 
ence in  the  interests  and  wants  of  the  parties  serves  still 
further  to  preserve  the  equilibrium.  France,  often  involved 
in  bloody  wars,  has  received  essential  services  from  the  Swiss  : 
the  Helvetic  body,  void  of  ambition,  and  untainted  with  the 
spirit  of  conquest,  may  live  in  peace  with  the  whole  world ; 
they  have  nothing  to  fear,  since  they  have  feelingly  convinced 
the  ambitious,  that  the  love  of  liberty  gives  the  nation  suffi- 
cient strength  to  defend  her  frontiers.  This  alliance  may  at 
certain  times  have  appeared  unequal : — our  forefathers*  paid 
little  attention  to  ceremony : — but,  in  reality,  and  especially 
since  the  absolute  independence  of  the  Swiss  is  acknowledged 
by  the  empire  itself,  the  alliance  is  certainly  equal,  although 
the  Helvetic  body  do  not  hesitate  to  yield  to  the  king  of 
France  all  that  pre-eminence  which  the  established  usage  of 
modern  Europe  attributes  to  crowned  heads,  and  especially 
to  great  monarchs. 

*  The  author  was  a  native  of  Switzerland. 


AND   OTHER   PUBLIC   TREATIES.  201 

Treaties  in  which  the  inequality  prevails  on  the  side  of  the  BOOK  H. 
inferior  power — that  is  to  say,  those  which  impose  on  the  CHAP-  *"• 
•weaker  party  more  extensive  obligations  or  greater  burdens, 
or  bind  him  down  to  oppressive  or  disagreeable  conditions, — 
these  unequal  treaties,  I  say,  are  always  at  the  same  time 
unequal  alliances;  for,  the  weaker  party  never  submits  to 
burdensome  conditions,  without  being  obliged  also  to  acknow- 
ledge the  superiority  of  his  ally.  These  conditions  are  com- 
monly imposed  by  the  conqueror,  or  dictated  by  necessity,  r  202  ] 
which  obliges  a  weak  state  to  seek  the  protection  or  assist- 
ance of  another  more  powerful ;  and  by  this  very  step,  the 
weaker  state  acknowledges  her  own  inferiority.  Besides, 
this  forced  inequality  in  a  treaty  of  alliance  is  a  disparage- 
ment to  her,  and  lowers  her  dignity,  at  the  same  time  that  it 
exalts  that  of  her  more  powerful  ally.  Sometimes  also,  the 
weaker  state  not  being  in  a  condition  to  promise  the  same  suc- 
cours as  the  more  powerful  one,  it  becomes  necessary  that  she 
should  compensate  for  her  inability  in  this  point,  by  engage- 
ments which  degrade  her  below  her  ally,  and  often  even  sub- 
ject her,  in  various  respects,  to  his  will.  Of  this  kind  are  all 
those  treaties  in  which  the  weaker  party  alone  engages  not 
to  make  war  without  the  consent  of  her  more  powerful  ally, — 
to  have  the  same  friends  and  the  same  enemies  with  him, — 
to  support  and  respect  his  dignity, — to  have  no  fortresses  in 
certain  places, — not  to  trade  or  raise  soldiers  in  certain  free 
countries, — to  deliver  up  her  vessels  of  war,  and  not  to  build 
others,  as  was  the  case  of  the  Carthaginians  when  treating 
with  their  Roman  conquerors, — to  keep  up  only  a  certain 
number  of  troops,  &c. 

These  unequal  alliances  are  subdivided  into  two  kinds ; 
they  either  impair  the  sovereignty,  or  they  do  not.  We  have 
slightly  touched  on  this  in  Book  I.  Ch.  I.  and  XVI. 

The  sovereignty  subsists  entire  and  unimpaired  when  none 
of  its  constituent  rights  are  transferred  to  the  superior  ally, 
or  rendered,  as  to  the  exertion  of  them,  dependent  on  his 
will.  But  the  sovereignty  is  impaired  when  any  of  its  rights 
are  ceded  to  an  ally,  or  even  if  the  use  of  them  be  merely 
rendered  dependent  on  the  will  of  that  ally.  For  example, 
the  treaty  does  not  impair  the  sovereignty,  if  the  weaker 
state  only  promises  not  to  attack  a  certain  nation  without  the 
consent  of  her  ally.  By  such  an  engagement  she  neither 
divests  herself  of  her  right,  nor  subjects  the  exertion  of  it  to 
another's  will ;  she  only  consents  to  a  restriction  in  favour 
of  her  ally :  and  thus  she  incurs  no  greater  diminution  of 
liberty  than  is  incurred  by  promises  of  every  kind.  Such 
reservations  are  every  day  stipulated  in  alliances  that  are 
perfectly  equal.  But,  if  either  of  the  contracting  parties 
engages  not  to  make  war  against  any  one  whatsoever  without 
the  consent  or  permission  of  an  ally  who  on  his  side  does  not 
make  the  same  promise,  the  former  contracts  an  unequal  alii- 
38  297 


202  OF  TREATIES  OF  ALLIANCE, 

BOOK  ii.  ance,  with  diminution  of  sovereignty ;  for  he  deprives  him- 
CHAP,  xii.  Self  Of  one  Of  t^  most  important  branches  of  the  sovereign 
power,  or  renders  the  exertion  of  it  dependent  on  another's 
will.  The  Carthaginians  having,  in  the  treaty  that  termi- 
nated the  second  Punic  war,  promised  not  to  make  war  on 
any  state  without  the  consent  of  the  Roman  people,  were 
thenceforward,  and  for  that  reason,  considered  as  dependent 
on  the  Romans. 

§  176.  How     When  a  nation  is  forced  to  submit  to  the  will  of  a  superior 
ai1  u '  jian?e  power,  she  may  lawfully  renounce  her  former  treaties,  if  the 
nution'of"    Party  w^n  w^°m  s^e  ig  obliged  to  enter  into  an  alliance  re- 
sovereignty  quires  it  of  her.     As  she  then  loses  a  part  of  her  sovereignty, 
may  annul  her  ancient  treaties  fall  to  the  ground  together  with  the  power 
preceding     ^hat  had  concluded  them.     This  is  a  necessity  that  cannot  be 
^OAO  -|  imputed  to  her  as  a  crime :  and  since  she  would  have  a  right 
J  to  place  herself  in  a  state  of  absolute  subjection,  and  to  re- 
nounce her  own  sovereign,  if  she  found  such  measures  neces- 
sary for  her  preservation, — by  a  much  stronger  reason,  she 
has  a  right,  under  the  same  necessity,  to  abandon  her  allies. 
But  a  generous  people  will  exhaust  every  resource  before  they 
will  submit  to  terms  so  severe  and  so  humiliating. 
§  177.  We       In  general,  as  every  nation  ought  to  be  jealous  of  her  glory, 
ought  to      careful  of  maintaining  her  dignity,  and  preserving  her  inde- 
much  as      pendence,  nothing  short  of  the  last  extremity,  or  motives  the 
possible       most  weighty  and  substantial,  ought  ever  to  induce  a  people 
making  un-  to  contract  an  unequal  alliance.     This  observation  is  particu- 
equal  alh-    iarjy  meant  to  apply  to  treaties  where  the  inequality  prevails 
on  the  side  of  the  weaker  ally,  and  still  more  particularly  to 
those  unequal  alliances  that  degrade  the  sovereignty.     Men 
of  courage  and  spirit  will  accept  such  treaties  from  no  other 
hands  but  those  of  imperious  necessity. 

§  178.  Mu-      Notwithstanding  every  argument  which  selfish  policy  may 
tual  duties   SUggest  to  the  contrary,  we  must  either  pronounce  sovereigns 
witlTrerect  *°  ^e  aDS°lutety  emancipated  from  all  subjection  to  the  law 
to  unequal   of  nature,  or  agree  that  it  is  not  lawful  for  them,  without 
alliances,      just  reasons,  to  compel  weaker  states  to  sacrifice  their  dig- 
nity, much  less  their  liberty,  by  unequal  alliances.     Nations 
owe  to  each  other  the  same  assistance,  the  same  respect,  the 
same  friendship,  as  individuals  living  in  a  state  of  nature. 
Far  from  seeking  to  humble  a  weaker  neighbour,  and  to  de- 
spoil her  of  her  most  valuable  advantages,  they  will  respect 
and  maintain  her  dignity  and  her  liberty,  if  they  are  inspired 
by  virtue  more  than  by  pride — if  they  are  actuated  by  prin- 
ciples of  honour  more  than  by  the  meaner  views  of  sordid 
interest — nay,  if  they  have  but  sufficient  discernment  to  dis- 
tinguish their  real  interests.     Nothing  more  firmly  secures 
the  power  of  a  great  monarch  than  his  attention  and  respect 
to  all  other  sovereigns.     The  more  cautious  he  is  to  avoid 
offending  his  weaker  brethren,  the  greater  esteem  he  testifies 
for  them,  the  more  will  they  revere  him  in  turn ;  they  feel 


AND   OTHER   PUBLIC   TREATIES.  203 

an  affection  for  a  power  whose  superiority  over  them  is  dis-    BOOK  u. 
played  only  by  the  conferring  of  favours  :  they  cling  to  such  CHAF-  x*1- 
a  monarch  as  their  prop    and   support ;    and   he   becomes 
the  arbiter  of  nations.     Had  his  demeanour  been  stamped 
with  arrogance,  he   would  have  been   the   object   of  their 
jealousy  and  fear,  and  might  perhaps  have  one  day  sunk 
under  their  united  efforts. 

But,  as  the  weaker  party  ought,  in  his  necessity,  to  accept  §  179.  In 
with  gratitude  the  assistance  of  the  more  powerful,  and  not  alliances 
to  refuse  him  such  honours  and  respect  as  are  nattering  to  j^JJ'JJ6 
the  person  who  receives  them,  without  degrading  him   by  •" ^ ^/ 
whom  they  are  rendered;  so,  on  the  other  hand,  nothing  is  side  of  the 
more  conformable  to  the  law  of  nature  than  a  generous  grant more  P°W- 
of  assistance  from  the  more  powerful  state,  unaccompanied erfil1  party< 
by  any  demand  of  a  return,  or,  at  least,  of  an  equivalent. 
And  in  this  instance  also,  there  exists  an  inseparable  connec-  [  204  ] 
tion  between  interest  and  duty.     Sound  policy  holds  out  a 
caution  to  a  powerful  nation  not  to  suffer  the  lesser  states  in 
her  neighbourhood  to  be  oppressed.     If  she  abandon  them  to 
the  ambition  of  a  conqueror,  he  will  soon  become  formidable 
to  herself.     Accordingly,  sovereigns,  who  are  in  general  suf- 
ficiently attentive  to  their  own  interests,  seldom  fail  to  reduce 
this  maxim  to  practice.     Hence  those  alliances,  sometimes 
against  the  house  of  Austria,  sometimes  against  its  rival, 
according  as  the  power  of  the  one  or  the  other  preponderates. 
Hence  that  balance  of  power,  the  object  of  perpetual  nego- 
tiations and  wars. 

When  a  weak  and  poor  nation  has  occasion  for  assistance 
of  another  kind — when  she  is  afflicted  by  famine — we  have 
seen  (§  5),  that  those  nations  who  have  provisions  ought  to 
supply  her  at  a  fair  price.  It  were  noble  and  generous  to 
furnish  them  at  an  under  price,  or  to  make  her  a  present  of 
them,  if  she  be  incapable  of  paying  their  value.  To  oblige 
her  to  purchase  them  by  an  unequal  alliance,  and  especially 
at  the  expense  of  her  liberty — to  treat  her  as  Joseph  for- 
merly treated  the  Egyptians — would  be  a  cruelty  almost  as 
dreadful  as  suffering  her  to  perish  with  famine. 

But  there  are  cases  where  the  inequality  of  treaties  and  §  iso.  How 
alliances,  dictated  by  some  particular  reasons,  is  not  contrary  inequality 
to  equity,  nor,  consequently,  to  the  law  of  nature.     Such,  in  ^fjjjjj. 
general,  are  all  those  cases  in  which  the  duties  that  a  nation  ces  may  be 
owes  to  herself,  or  those  which  she  owes  to  other  nations,  pre-  conformable 
scribe  to  her  a  departure  from  the  line  of  equality.     If,  for to  the  law 
instance,  a  weak  state  attempts,  without  necessity,  to  erect  a  of  nature- 
fortress,  which  she  is  incapable  of  defending,  in  a  place  where 
it  might  become  very  dangerous  to  her  neighbour  if  ever  it 
should  fall  into  the  hands  of  a  powerful  enemy,  that  neigh- 
bour may  oppose  the  construction  of  the  fortress ;  and,  if  he 
does  not  find  it  convenient  to  pay  the  lesser  state  a  compen- 
sation for  complying  with  his  desire,  he  may  force  her  com- 


204  OF  TREATIES  OF  ALLIANCE, 

BOOK  n.  pliance,  by  threatening  to  block  up  the  roads  and  avenues  of 
CHAP,  xn.  communication,  to  prohibit  all  intercourse  between  the  two 
nations,  to  build  fortresses,  or  to  keep  an  army  on  the  fron- 
tier, to  consider  that  little  state  in  a  suspicious  light,  &c.  He 
thus  indeed  imposes  an  unequal  condition ;  but  his  conduct  is 
authorized  by  the  care  of  his  own  safety.  In  the  same  man- 
ner he  may  oppose  the  forming  of  a  highway,  that  would  open 
to  an  enemy  an  entrance  into  his  state.  War  might  furnish 
us  with  a  multitude  of  other  examples.  But  rights  of  this 
nature  are  frequently  abused ;  and  it  requires  no  less  mode- 
ration than  prudence  to  avoid  turning  them  into  oppression. 

Sometimes  those  duties  to  which  other  nations  have  a 
claim,  recommend  and  authorize  inequality  in  a  contrary 
sense,  without  affording  any  ground  of  imputation  against  a 
sovereign,  of  having  neglected  the  duty  which  he  owes  to 
himself  or  to  his  people.  Thus,  gratitude — the  desire  of 
showing  his  deep  sense  of  a  favour  received — may  induce  a 
generous  sovereign  to  enter  into  an  alliance  with  joy,  and  to 
[  205  ]  give  in  the  treaty  more  than  he  receives. 

§  181.  Ine-  It  is  also  consistent  with  justice  to  impose  the  conditions 
quality  im-  of  an  unequal  treaty,  or  even  an  unequal  alliance,  by  way 
of  penalty,  in  order  to  punish  an  unjust  aggressor,  and  ren- 
der  him  incapable  of  easily  injuring  us  for  the  time  to  come. 
Such  was  the  treaty  to  which  the  elder  Scipio  Africanus  forced 
the  Carthaginians  to  submit,  after  he  had  defeated  Hannibal. 
The  conqueror  often  dictates  such  terms :  and  his  conduct  in 
this  instance  is  no  violation  of  the  laws  of  justice  or  equity, 
provided  he  do  not  transgress  the  bounds  of  moderation, 
after  he  has  been  crowned  with  success  in  a  just  and  neces- 
sary war. 

§  182.  Other  The  different  treaties  of  protection — those  by  which  a  state 
kinds  of  renders  itself  tributary  or  feudatory  to  another — form  so 
which  we  many  different  kinds  of  unequal  alliances.  But  we  shall  not 
elsewhere Cn  repeat  here  what  we  have  said  respecting  them  in  Book  I. 

Chap.  I.  and  XVI. 

§  183.  Per-      By  another  general  division  of  treaties  or  alliances,  they 
reaHreaties  ai<e  Distinguished  into  personal  and  real:  the  former  are  those 
'  that  relate  to  the  persons  of  the  contracting  parties,  and  are 
confined  and  in  a  manner  attached  to  them.     Real  alliances 
relate  only  to  the  matters  in  negotiation  between  the  contract- 
ing parties,  and  are  wholly  independent  of  their  persons. 
A  personal  alliance  expires  with  him  who  contracted  it. 
A  real  alliance  attaches  to  the  body  of  the  state,  and  sub- 
sists as  long  as  the  state,  unless  the  period  of  its  duration 
has  been  limited. 

It  is  of  considerable  importance  not  to  confound  these  two 
sorts  of  alliances.  Accordingly,  sovereigns  are  at  present 
accustomed  to  express  themselves  in  their  treaties  in  such  a 
manner  as  to  leave  no  uncertainty  in  this  respect :  and  this 
is  doubtless  the  best  and  safest  method.  In  default  of  this 

300 


AND    OTHEK   PUBLIC   TREATIES.  205 

precaution,  the  very  subject  of  the  treaty,  or  the  expressions    BOOK  n. 
in  which  it  is  couched,  may  furnish  a  clue  to  discover  whether  CHAP,  xu. 
it  be  real  or  personal.     On  this  head  we  shall  lay  down  some 
general  rules. 

In  the  first  place,  we  are  not  to  conclude  that  a  treaty  is  §  134. 
a  personal  one  from  the  bare  circumstance  of  its  naming  the  Naming  the 
contracting  sovereigns :  for,  the  name  of  the  reigning  sove-  contracting 
reign  is  often  inserted  with  the  sole  view  of  showing  with  ^J1^^1 
whom  the  treaty  has  been  concluded,  without  meaning  thereby  (]oes  not 
to  intimate  that  it  has  been  made  with  himself  personally,  render  it 
This  is  an  observation  of  the  civilians  Pedius  and  Ulpian,*  personal, 
repeated  by  all  writers  who  have  treated  of  these  subjects. 

Every  alliance  made  by  a  republic  is  in  its  own  nature  real,  §  185.  An 
for  it  relates  only  to  the  body  of  the  state.  When  a  free  peo-  alliance 
pie,  a  popular  state,  or  an  aristocratical  republic,  concludes  a™a^,ij^-a 
treaty,  it  is  the  state  herself  that  contracts ;  and  her  engage-  reai. 
ments  do  not  depend  on  the  lives  of  those  who  were  only  the  r  206  ] 
instruments  in  forming  them :  the  members  of  the  people,  or 
of  the  governing  body,  change  and  succeed  each  other  ;  but 
the  state  still  continues  the  same. 

Since,  therefore,  such  a  treaty  directly  relates  to  the  body 
of  the  state,  it  subsists,  though  the  form  of  the  republic  should 
happen  to  be  changed — even  though  it  should  be  transformed 
into  a  monarchy.  For,  the  state  and  the  nation  are  still  the 
same,  notwithstanding  every  change  that  may  take  place  in 
the  form  of  the  government ;  and  the  treaty  concluded  with 
the  nation  remains  in  force  as  long  as  the  nation  exists.  But 
it  is  manifest  that  all  treaties  relating  to  the  form  of  govern- 
ment are  exceptions  to  this  rule.  Thus  two  popular  states, 
that  have  treated  expressly,  or  that  evidently  appear  to  have 
treated,  with  the  view  of  maintaining  themselves  in  concert 
in  their  state  of  liberty  and  popular  government,  cease  to  be 
allies  from  the  very  moment  that  one  of  them  has  submitted 
to  be  governed  by  a  single  person.  , 

Every  public  treaty,  concluded  by  a  king  or  by  any  other  §  186, 
monarch,  is  a  treaty  of  the  state ;  it  is  obligatory  on  the Treaties 
whole  state,  on  the  entire  nation  which  the  king  represents,  ^ings  or 
and  whose  power  and  rights  he  exercises.     It  seems  then  at  other 
first  view,  that  every  public  treaty  ought  to  be  presumed  real,  monarchs. 
as  concerning  the  state  itself.     There  can  be  no  doubt  with 
respect  to  the  obligation  to  observe  the  treaty :  the  only  ques- 
tion that  arises,  is  respecting  its  duration.     Now,  there  is 
often  room  to  doubt  whether  the  contracting  parties  have 
intended  to  extend  their  reciprocal  engagements  beyond  the 
term  of  their  own  lives,  and  to  bind  their  successors.     Con- 
junctures change ;  a  burden  that  is  at  present  light,  may  in 
other  circumstances  become  insupportable,  or  at  least  oppres- 
sive :  the  manner  of  thinking  among  sovereigns  is  no  less 

•  Digest,  lib.  ii.  tit.  xiv.  de  Pactis,  leg.  vii.  §  8. 

2  A  301 


206  OF  TREATIES  OF  ALLIANCE, 

BOOK  IT.    variable ;  and  there  are  certain  things  of  which  it  is  proper 

CHAP,  xii.  that  each  prince  should  be  at  liberty  to  dispose  according  to 

his  own  system.     There  are  others  that  are  freely  granted  to 

one  king,  and  would  not  be  allowed  to  his  successor.     It 

therefore  becomes  necessary  to  consider  the  terms  of  the 

treaty,  or  the  matter  which  forms  the  subject  of  it,  in  order 

to  discover  the  intentions  of  tke  contracting  powers. 

etuai  trca-      Perpetual   treaties,   and   those   made  for   a   determinate 

ties,  and      period,  are  real  ones,  since  their  duration  cannot  depend  on 

those  for  a    the  lives  of  the  contracting  parties. 

certain  time.  jn  the  same  manner,  when  a  king  declares  in  the  treaty 
§  188. Trea- that  it  is  made  "for  himself  and  his  successors,"  it  is  mani- 
foTthTkin  ^cs^  *na*  ^is  is  a  real  treaty.  It  attaches  to  the  state,  and 
and  his  is  intended  to  last  as  long  as  the  kingdom  itself, 
successors.  When  a  treaty  expressly  declares  that  it  is  made  for  the 
§  189.  good  of  the  kingdom,  it  thus  furnishes  an  evident  proof  that 
Treaties  the  contracting  powers  did  not  mean  that  its  duration  should 
made  for  depend  on  that  of  their  own  lives,  but  on  that  of  the  kingdom 

the  good  of  •  .  S/>       o      i  -if  i 

the  king-     itself.     Such  treaty  is  therefore  a  real  one. 
dom.  Independently  even  of  this  express  declaration,  when  a 

[  207  ]  treaty  is  made  for  the  purpose  of  procuring  to  the  state  a 
certain  advantage  which  is  in  its  own  nature  permanent  and 
unfailing,  there  is  no  reason  to  suppose  that  the  prince  by 
whom  the  treaty  has  been  concluded,  intended  to  limit  it  to 
the  duration  of  his  own  life.  Such  a  treaty  ought  therefore 
to  be  considered  as  a  real  one,  unless  there  exist  very  power- 
ful evidence  to  prove  that  the  party  with  whom  it  was  made 
granted  the  advantage  in  question  only  out  of  regard  to  the 
prince  then  reigning,  and  as  a  personal  favour  :  in  which  case 
the  treaty  terminates  with  the  life  of  the  prince,  as  the  motive 
for  the  concession  expires  with  him.  But  such  a  reservation 
is  not  to  be  presumed  on  slight  grounds :  for,  it  would  seem, 
that,  if  the  contracting  parties  had  had  it  in  contemplation, 
they  should  have  expressed  it  in  the  treaty. 

§  190.  How  In  case  of  doubt,  where  there  exists  no  circumstance  by 
presump-  which  we  can  clearly  prove  either  the  personality  or  the 
tion  ought  reajity  of  a  treaty,  it  ought  to  be  presumed  a  real  treaty  if  it 

to  be  found-    •>  •   a  •  j.        c  r  1,1  A-   t  •?     e      j- 

ed  in  doubt-  chiefly  consists  01  favourable  articles, — if  of  odious  ones,  a 
ful  cases,  personal  treaty.  By  favourable  articles  we  mean  those  which 
tend  to  the  mutual  advantage  of  the  contracting  powers,  and 
which  equally  favour  both  parties ;  by  odious  articles,  we 
understand  those  which  onerate  one  of  the  parties  only,  or 
which  impose  a  much  heavier  burden  upon  the  one  than  upon 
the  other.  We  shall  treat  this  subject  more  at  large  in  the 
chapter  on  the  "Interpretation  of  Treaties."  Nothing  is 
more  conformable  to  reason  and  equity  than  this  rule.  When- 
ever absolute  certainty  is  unattainable  in  the  affairs  of  men, 
we  must  have  recourse  to  presumption.  Now,  if  the  con- 
tracting powers  have  not  explained  themselves,  it  is  natural, 
when  the  question  relates  to  things  favourable,  and  equally 

302 


AND    OTHER   PUBLIC   TREATIES.  207 

advantageous  to  the  two  allies,  to  presume  that  it  was  their  BOOK  u. 
intention  to  make  a  real  treaty,  as  being  the  more  advan-  CHAP-  XJI- 
tageous  to  their  respective  kingdoms:  and  if  we  are  mistaken 
in  this  presumption,  we  do  no  injury  to  either  party.  But, 
if  there  be  any  thing  odious  in  the  engagements, — if  one  of 
the  contracting  states  finds  itself  overburdened  by  them, — 
how  can  it  be  presumed  that  the  prince  who  entered  into 
such  engagements  intended  to  lay  that  burden  upon  his  king- 
dom in  perpetuity  ?  Every  sovereign  is  presumed  to  desire 
the  safety  and  advantage  of  the  state  with  which  he  is  in- 
trusted :  wherefore  it  cannot  be  supposed  that  he  has  con- 
sented to  load  it  for  ever  with  a  burdensome  obligation.  If 
necessity  rendered  such  a  measure  unavoidable,  it  was  in- 
cumbent on  his  ally  to  have  the  matter  explicitly  ascertained 
at  the  time ;  and  it  is  probable  that  he  would  not  have  neg- 
lected this  precaution,  well  knowing  that  mankind  in  gene- 
ral, and  sovereigns  in  particular,  seldom  submit  to  heavy  and 
disagreeable  burdens,  unless  bound  to  do  so  by  formal  obliga- 
tions. If  it  happens  then  that  the  presumption  is  a  mistake, 
and  makes  him  lose  something  of  his  right,  it  is  a  consequence 
of  his  own  negligence.  To  this  AVC  may  add,  that,  if  either 
the  one  or  the  other  must  sacrifice  a  part  of  his  right,  it  will 
be  a  less  grievous  violation  of  the  laws  of  equity  that  the  lat-  [  208  ] 
ter  should  forego  an  expected  advantage,  than  that  the  former 
should  suffer  a  positive  loss  and  detriment.  This  is  the  fa- 
mous distinction  de  lucro  captando,  and  de  damno  vitando. 

We  do  not  hesitate  to  include  equal  treaties  of  commerce 
in  the  number  of  those  that  are  favourable,  since  they  are  in 
general  advantageous,  and  perfectly  conformable  to  the  law 
of  nature.  As  to  alliances  made  on  account  of  war,  Grotius 
says  with  reason,  that  "  defensive  alliances  are  more  of  a 
favourable  nature, — offensive  alliances  have  something  in 
them  that  approaches  nearer  to  what  is  burdensome  or 
odious."* 

We  could  not  dispense  with  the  preceding  brief  summary 
of  those  discussions,  lest  we  should  in  this  part  of  our  trea- 
tise leave  a  disgusting  chasm.  They  are,  however,  but  sel- 
dom resorted  to  in  modern  practice,  as  sovereigns  at  present 
generally  take  the  prudent  precaution  of  explicitly  ascertain- 
ing the  duration  of  their  treaties.  They  treat  for  themselves 
and  their  successors, — for  themselves  and  their  kingdoms, — 
for  perpetuity, — for  a  certain  number  of  years,  &c. — or  they 
treat  only  for  the  time  of  their  own  reign, — for  an  affair 
peculiar  to  themselves, — for  their  families,  &c. 

Since  public  treaties,  even  those  of  a  personal  nature,  con-  §  191.  The 
eluded  by  a  king,  or  by  any  other  sovereign  who  is  invested  obligati 
with  sufficient  power,  are  treaties  of  state,  and  obligatory  w 
the  whole  nation  (§  186),  real  treaties,  which  were  intended 

*  De  Jure  Belli  et  Pacis,  lib.  ii.  cap.  xvi.  §  16. 


208  OF  TREATIES  OF  ALLIANCE, 

BOOK  n.    to  subsist  independently  of  the  person  who  has  concluded 

CHAP,  xn.  them,  are  undoubtedly  binding  on   his  successors  ;  and  the 

from  a  real  obligation  which  such  treaties  impose  on  the  state   passes 

treaty  pass   successively  to  all  her  rulers  as  soon  as  they  assume  the  pub- 

to  the  sue-   jjc    authority.      The  case  is  the  same  with  respect  to  the 

!0rs'        rights  acquired  by  those  treaties :  they  are  acquired  for  the 

state,  and  successively  pass  tocher  conductors. 

It  is  at  present  a  pretty  general  custom  for  the  successor 
to  confirm  or  renew  even  real  alliances  concluded  by  his  pre- 
decessors :  and  prudence  requires  that  this  precaution  should 
not  be  neglected,  since  men  pay  greater  respect  to  an  obli- 
gation which  they  have  themselves  contracted,  than  to  one 
which  devolves  on  them  from  another  quarter,  or  to  which 
they  have  only  tacitly  subjected  themselves.  The  reason  is, 
that,  in  the  former  case,  they  consider  their  word  to  be  en- 
gaged, and,  in  the  latter,  their  conscience  alone. 

§i92.Trea-      The  treaties  that  have  no  relation  to  the  performance  of 
ties  accom-  reiterated  acts,  but  merely  relate  to  transient  and  single  acts 

pushed  once      ,  .   ,  i    j    j       ,.  Av  /       i  •    j      j 

for  all  and  wnicn  are  concluded  at  once, — those  treaties  (unless  indeed 
perfected,  it  be  more  proper  to  call  them  by  another  name*) — those 
conventions,  those  compacts,  which  are  accomplished  once  for 
all,  and  not  by  successive  acts, — are  no  sooner  executed  than 
[  209  ]  they  are  completed  and  perfected.  If  they  are  valid,  they 
have  in  their  own  nature  a  perpetual  and  irrevocable  effect : 
nor  have  we  them  in  view  when  we  inquire  whether  a  treaty 
be  real  or  personal.  Puffendorf  f  gives  us  the  following  rules 
to  direct  us  in  this  inquiry — "1.  That  the  successors  are 
bound  to  observe  the  treaties  of  peace  concluded  by  their 
predecessors.  2.  That  a  successor  should  observe  all  the 
lawful  conventions  by  which  his  predecessor  has  transferred 
any  right  to  a  third  party."  This  is  evidently  wandering 
from  the  point  in  question :  it  is  only  saying  that  what  is 
done  with  validity  by  a  prince,  cannot  be  annulled  by  his 
successors. — And  who  doubts  it  ?  A  treaty  of  peace  is  in 
its  own  nature  made  with  a  view  to  its  perpetual  duration  : 
and,  as  soon  as  it  is  once  duly  concluded  and  ratified,  the 
affair  is  at  an  end ;  the  treaty  must  be  accomplished  on  both 
sides,  and  observed  according  to  its  tenor.  If  it  is  executed 
upon  the  spot,  there  ends  the  business  at  once.  But,  if  the 
treaty  contains  engagements  for  the  performance  of  succes- 
sive and  reiterated  acts,  it  will  still  be  necessary  to  examine, 
according  to  the  rules  we  have  laid  down,  whether  it  be  in 
this  respect  real  or  personal, — whether  the  contracting  par- 
ties intended  to  bind  their  successors  to  the  performance  of 
those  acts,  or  only  promised  them  for  the  time  of  their  own 
reign.  In  the  same  manner,  as  soon  as  a  right  is  transferred 
by  a  lawful  convention,  it  no  longer  belongs  to  the  state  that 

*  See  Chap.  XII.  §  153,  of  this  book. 

t  Law  of  Nature  and  Nations,  book  8,  c.  9,  §  8. 


AND   OTHER   PUBLIC   TREATIES. 


209 


has  ceded  it ;  the  affair  is  concluded  and  terminated.     But,    BOOK  n. 
if  the  successor  discovers  any  flaw  in  the  deed  of  transfer,  CHAP-  xn- 
and  proves  it,  he  is  not  to  he  accused  of  maintaining  that  the 
convention  is  not  obligatory  on  him,  and  refusing  to  fulfil  it ; 
— he  only  shows  that  such  convention  has  not  taken  place  : 
for  a  defective  and  invalid  deed  is  a  nullity,  and  to  be  consi- 
dered as  having  never  existed. 

The  third  rule  given  by  Puffendorf  is  no  less  useless  with  § 193-  T 
respect  to  this  question.  It  is,  "  that  if,  after  the  other  ally  Jj^jJ* 
has  already  executed  something  to  which  he  was  bound  by  e^°™th 
virtue  of  the  treaty,  the  king  happens  to  die  before  he  has  one  part, 
accomplished  in  his  turn  what  he  had  engaged  to  perform, 
his  successor  is  indispensably  obliged  to  perform  it.  For, 
what  the  other  ally  has  executed  under  the  condition  of  re- 
ceiving an  equivalent,  having  turned  to  the  advantage  of  the 
state,  or  at  least  having  been  done  with  that  view,  it  is  clear, 
that,  if  he  does  not  receive  the  return  for  which  he  had 
stipulated,  he  then  acquires  the  same  right  as  a  man  who  has 
paid  what  he  did  not  owe ;  and,  therefore,  the  successor  is 
obliged  to  allow  him  a  complete  indemnification  for  what  he 
has  done  or  given,  or  to  make  good,  on  his  own  part,  what 
his  predecessor  had  engaged  to  perform."  All  this,  I  say,  is 
foreign  to  our  question.  If  the  alliance  is  real,  it  still  sub- 
sists, notwithstanding  the  death  of  one  of  the  contracting 
parties  ;  if  it  is  personal,  it  expires  with  them,  or  either  of 
them  (§  183).  But,  when  a  personal  alliance  comes  to  be 
dissolved  in  this  manner,  it  is  quite  a  different  question  to  [  210 
ascertain  what  one  of  the  allied  states  is  bound  to  perform,  in 
case  the  other  has  already  executed  something  in  pursuance 
of  the  treaty :  and  this  question  is  to  be  determined  on  very 
different  principles.  It  is  necessary  to  distinguish  the  nature 
of  what  has  been  done  pursuant  to  the  treaty.  If  it  has 
been  any  of  those  determinate  and  substantial  acts  which  it 
is  usual  with  contracting  parties  mutually  to  promise  to  each 
other  in  exchange,  or  by  way  of  equivalent,  there  can  be  no 
doubt  that  he  who  has  received,  ought  to  give  what  he  has 
promised  in  return,  if  he  would  adhere  to  the  agreement,  and 
is  obliged  to  adhere  to  it :  if  he  is  not  bound,  and  is  unwilling 
to  adhere  to  it,  he  ought  to  restore  what  he  has  received,  to 
replace  things  in  their  former  state,  or  to  indemnify  the  ally 
from  whom  he  has  received  the  advantage  in  question.  To  act 
otherwise,  would  be  keeping  possession  of  another's  property. 
In  this  case,  the  ally  is  in  the  situation,  not  of  a  man  who 
has  paid  what  he  did  not  owe,  but  of  one  who  has  paid  be- 
forehand for  a  thing  that  has  not  been  delivered  to  him. 
But,  if  the  personal  treaty  related  to  any  of  those  uncertain 
and  contingent  acts  which  are  to  be  performed  as  occasions 
offer, — of  those  promises  which  are  not  obligatory  if  an  op- 
portunity of  fulfilling  them  does  not  occur, — it  is  only  on 
occasion  likewise  that  the  performance  of  similar  acts  is  due 

39  2A2  305 


210  OF  TREATIES  OF  ALLIANCE, 

BOOK  n.  in  return :  and,  when  the  term  of  the  alliance  is  expired, 
CHAP,  xii.  neither  of  the  parties  remains  bound  by  any  obligation.  In 
a  defensive  alliance,  for  instance,  two  kings  have  reciprocally 
promised  each  other  a  gratuitous  assistance  during  the  term 
of  their  lives :  one  of  them  is  attacked :  he  is  succoured  by 
his  ally,  and  dies  before  he  has  an  opportunity  to  succour 
him  in  his  turn :  the  alliance  is  at  an  end,  and  no  obligation 
thence  devolves  on  the  successor  of  the  deceased,  except  in- 
deed that  he  certainly  owes  a  debt  of  gratitude  to  the  sove- 
reign who  has  given  a  salutary  assistance  to  his  state.  And 
we  must  not  pronounce  such  an  alliance  an  injurious  one  to 
the  ally  who  has  given  assistance  without  receiving  any.  His 
treaty  was  one  of  those  speculating  contracts  in  which  the 
advantages  or  disadvantages  wholly  depend  on  chance :  he 
might  have  gained  by  it,  though  it  has  been  his  fate  to  lose. 

We  might  here  propose  another  question.  The  personal 
alliance  expiring  at  the  death  of  one  of  the  allies,  if  the  sur- 
vivor, under  an  idea  that  it  is  to  subsist  with  the  successor, 
fulfils  the  treaty  on  his  part  in  favour  of  the  latter,  defends 
his  country,  saves  some  of  his  towns,  or  furnishes  provisions 
for  his  army, — what  ought  the  sovereign  to  do,  who  is  thus 
succoured  ?  He  ought,  doubtless,  either  to  suffer  the  alliance 
to  subsist,  as  the  ally  of  his  predecessor  has  conceived  that 
it  was  to  subsist  (and  this  will  be  a  tacit  renewal  and  exten- 
sion of  the  treaty) — or  to  pay  for  the  real  service  he  has  re- 
ceived, according  to  a  just  estimate  of  its  importance,  if  he 
does  not  choose  to  continue  that  alliance.  It  would  be  in 
such  a  case  as  this  that  we  might  say  with  Puffendorf,  that  he 
£  211  ]  who  has  rendered  such  a  service  has  acquired  the  right  of  a 

man  who  has  paid  what  he  did  not  owe. 

§  194.  The  The  duration  of  a  personal  alliance  being  restricted  to  the 
personal  al-  persons  of  the  contracting  sovereigns, — if,  from  any  cause 
hance  ex-^  -whatsoever,  one  of  them  ceases  to  reign,  the  alliance  ex- 
erf  the  con-  pires :  for  they  have  contracted  in  quality  of  sovereigns  ;  and 
trading  he  who  ceases  to  reign  no  longer  exists  as  a  sovereign,  though 
power*  he  still  lives  as  a  man. 

Kings  do  not  always  treat  solely  and  directly  for  their 
Tils'  Trea-  kingdoms ;  sometimes,  by  virtue  of  the  power  they  have  in 
ties  in  their  their  hands,  they  make  treaties  relative  to  their  own  persons, 
own  nature  or  their  families;  and  this  they  may  lawfully  do,  as  the  wel- 
personaL      fare  Of  the  state  is  interested  in  the  safety  and  advantage  of 
the  sovereign,  properly  understood.     These  treaties  are  per- 
sonal in  their  own  nature,  and  expire,  of  course,  on  the  death 
of  the  king  or  the  extinction  of  his  family.     Such  is  an  alli- 
ance made  for  the  defence  of  a  king  and  his  family. 
§  i»6.  Alii-      It  is  asked,  whether  such  an  alliance  subsists  with  the  king 
""!f  T^~     an<^  *^e  r°yal  family,  when,  by  some  revolution,  they  are  de- 
th"  defence  Prived  of  the  €rown"     We  have  remarked  above  (§  194),  that 
of  the  kiag  a  personal  alliance  expires  with  the  reign  of  him  who  con- 
and  the        tracted  it :  but  that  is  to  be  understood  of  an  alliance  formed 


AND  OTHER  PUBLIC  TEEATIES.  211 

with  the  state,  and  restricted,  in  its  duration,  to  the  reign  of    BOOK  n. 
the  contracting  king.     But  the  alliance  of  which  we  are  now  CHAP,  xn. 
to  treat,  is  of  another  nature.     Although  obligatory  on  the  royai 
state,  since  she  is  bound  by  all  the  public  acts  of  her  sove-  family, 
reign,  it  is  made  directly  in  favour  of  the  king  and  his  family : 
it  would,  therefore,  be  absurd  that  it  should  be  dissolved  at 
the  moment  when  they  stand  in  need  of  it,  and  by  the  very 
event  which  it  was  intended  to  guard  against.     Besides,  the 
king  does  not  forfeit  the  character  of  royalty  merely  by  the 
loss  of  his  kingdom.     If  he  is  unjustly  despoiled  of  it  by  an 
usurper,  or  by  rebels,  he  still  preserves  his  rights,  among 
which  are  to  be  reckoned  his  alliances. 

But  who  shall  judge  whether  a  king  has  been  dethroned 
lawfully  or  by  violence  ?  An  independent  nation  acknow- 
ledges no  judge.  If  the  body  of  the  nation  declare  that  the 
king  has  forfeited  his  right,  by  the  abuse  he  has  made  of  it, 
and  depose  him,  they  may  justly  do  it  when  their  grievances 
are  well  founded ;  and  no  other  power  has  a  right  to  censure 
their  conduct.  The  personal  ally  of  this  king  ought  not, 
therefore,  to  assist  him  against  the  nation  who  have  made  use 
of  their  right  in  deposing  him:  if  he  attempts  it,  he  injures 
that  nation.  England  declared  war  against  Louis  XIV.,  in 
the  year  1688,  for  supporting  the  interests  of  James  II.,  who 
had  been  formally  deposed  by  the  nation.  The  same  coun- 
try declared  war  against  him  a  second  time,  at  the  beginning 
of  the  present  century,  because  that  prince  acknowledged  the 
son  of  the  deposed  monarch,  under  the  title  of  James  III. 
In  doubtful  cases,  and  when  the  body  of  the  nation  has  not 
pronounced,  or  has  not  pronounced  freely,  a  sovereign  ought  [  212  ] 
naturally  to  support  and  defend  an  ally ;  and  it  is  then  that 
the  voluntary  law  of  nations  subsists  between  different  states. 
The  party  who  have  expelled  the  king  maintain  that  they 
have  right  on  their  side  :  the  unfortunate  prince  and  his  allies 
flatter  themselves  with  having  the  same  advantage ;  and,  as 
they  have  no  common  judge  upon  earth,  there  remains  no 
other  mode  of  deciding  the  contest  than  an  appeal  to  arms : 
they,  therefore,  engage  in  a  formal  war. 

finally,  when  the  foreign  prince  has  faithfully  fulfilled  his 
engagements  towards  an  unfortunate  monarch,  when  he  has 
done,  in  his  defence,  or  to  procure  his  restoration,  every  thing 
which,  by  the  terms  of  the  alliance,  he  was  bound  to  do, — if 
his  efforts  have  proved  ineffectual,  it  cannot  be  expected,  by 
the  dethroned  prince,  that  he  shall  support  an  endless  war  in 
his  favour, — that  he  shall  for  ever  continue  at  enmity  with 
the  nation  or  the  sovereign  who  has  deprived  him  of  the 
throne.  He  must  at  length  think  of  peace,  abandon  his  un- 
fortunate ally,  and  consider  him  as  having  himself  abandoned 
his  right  through  necessity.  Thus,  Louis  XIV.  was  obliged 
to  abandon  James  II.  and  to  acknowledge  King  William, 
though  he  had  at  first  treated  him  as  an  usurper. 

307 


212  OF  TREATIES  OF  ALLIANCE,  ETC. 

BOOK  n.        The  same  question  presents  itself  in  real  alliances,  and,  in 
CHAP,  xii.  general,  in  all  alliances  made  with  a  state,  and  not  in  parti- 
§197.  Obli-  cular  with  a  king,  for  the  defence  of  his  person.     An  ally 
gation  of  a  ought,    doubtless,  to   be   defended   against   every  invasion, 
real  alliance  against  every  foreign  violence,  and  even  against  his  rebellious 
allied  kb!g    subjects ;  in  the  same  manner  a  republic  ought  to  be  defended 
is  deposed,    against  the  enterprises  of  one  who  attempts  to  destroy  the 
public  liberty.     But  the  other  party  in  the  alliance  ought  to 
recollect  that  he  is  the  ally,  and  not  the  judge,  of  the  state 
or  the  nation.     If  the  nation  has  deposed  her  king  in  form, 
— if  the  people  of  a  republic  have  expelled  their  magistrates, 
and  set  themselves  at  liberty,  or,  either  expressly  or  tacitly, 
acknowledged  the  authority  of  an  usurper, — to  oppose  these 
domestic  regulations,  or  to  dispute  their  justice  or  validity, 
would  be  interfering  in  the  government  of  the  nation,  and 
doing  her  an  injury  (see  §§  54,  &c.  of  this  Book.)     The  ally 
remains  the  ally  of  the  state,  notwithstanding  the  change 
that  has  happened  in  it.     However,  if  this  change  renders 
the  alliance  useless,  dangerous,  or  disagreeable  to  him,  he  is 
at  liberty  to  renounce  it :  for,  he  may  upon  good  grounds 
assert  that  he  would  not  have  entered  into  an  alliance  with  that 
nation,  had  she  been  under  her  present  form  of  government. 
To  this  case  we  may  also  apply  what  we  have  said  above 
respecting  a  personal  ally.     However  just  the  cause  of  that 
king  may  be,  who  is  expelled  from  the  throne  either  by  his 
subjects  or  by  a  foreign  usurper,  his  allies  are  not  obliged  to 
support  an  eternal  war  in  his  favour.     After  having  made 
ineffectual  efforts  to  reinstate  him,  they  must  at  length  restore 
to  their  people  the  blessings  of  peace ;  they  must  come  to  an 
accommodation  with  the  usurper,  and  for  that  purpose  treat 
with  him  as  with  a  lawful  sovereign.     Louis  XIV.,  finding 
himself  exhausted  by  a  bloody  and  unsuccessful  war,  made 
[  213  ]  an  offer,  at  Gertruydenberg,  to  abandon  his  grandson,  whom 
-he  had  placed  on  the  throne  of  Spain :  and  afterwards,  when 
the  aspect  of  affairs  was  changed,  Charles  of  Austria,  the 
rival  of  Philip,  saw  himself,  in  his  turn,  abandoned  by  his 
allies.     They  grew  weary  of  exhausting  their  states  in  order 
to  put  him  in  possession  of  a  crown  to  which  they  thought 
him  justly  entitled,  but  which  they  no  longer  saw  any  proba- 
bility of  being  able  to  procure  for  him. 


308 


OF  THE  DISSOLUTION  AND  RENEWAL  OF  TREATIES.  213 


BOOK   II. 
CHAP.  XIII. 


CHAP.  XIII. 

OF   THE   DISSOLUTION   AND   RENEWAL   OF   TREATIES.  (125) 

AN  alliance  is  dissolved  at  the  expiration  of  the  term  for  §  198.  Ex- 
which  it  had  been  concluded.  This  term  is  sometimes  fixed,  piration  of 
as,  when  an  alliance  is  made  for  a  certain  number  of  years  ;  jJJ 
sometimes  it  is  uncertain,  as  in  personal  alliances,  whose  du-  iimited 
ration  depends  on  the  lives  of  the  contracting  powers.  The  time, 
term  is  likewise  uncertain,  when  two  or  more  sovereigns  form 
an  alliance  with  a  view  to  some  particular  object;  as,  for 
instance,  that  of  expelling  a  horde  of  barbarous  invaders  ^ 
from  a  neighbouring  country, — of  reinstating  a  sovereign  on 
his  throne,  &c.  The  duration  of  such  an  alliance  depends 
on  the  completion  jof  the  enterprise  for  which  it  was  formed. 
Thus,  in  the  last-mentioned  instance,  when  the  sovereign  is 
restored,  and  so  firmly  seated  on  his  throne  as  to  be  able  to 
retain  the  undisturbed  possession  of  it,  the  alliance,  which 
was  formed  with  a  sole  view  to  his  restoration,  is  now  at  an 
end.  But,  on  the  other  hand,  if  the  enterprise  prove  unsuc- 
cessful,— the  moment  his  allies  are  convinced  of  the  impossi- 
bility of  carrying  it  into  effect,  the  alliance  is  likewise  at  an 
end ;  for  it  is  time  to  renounce  an  undertaking  when  it  is 
acknowledged  to  be  impracticable. 

A  treaty  entered  into  for  a  limited  time  may  be  renewed  §  199.  Re- 
by  the  common  consent  of  the  allies, — which  consent  may  be  newal  of 
either  expressly  or  tacitly  made  known.     When  the  treaty  is treaties- 
expressly  renewed,  it  is  the  same  as  if  a  new  one  were  con- 
cluded, in  all  respects  similar  to  the  former. 

The  tacit  renewal  of  a  treaty  is  not  to  be  presumed  upon 
slight  grounds;  for,  engagements  of  so  high  importance  are 
well  entitled  to  the  formality  of  an  express  consent.  The 
presumption,  therefore,  of  a  tacit  renewal  must  be  founded 
on  acts  of  such  a  nature  as  not  to  admit  a  doubt  of  their  hav- 
ing been  performed  in  pursuance  of  the  treaty.  But,  even  in 
this  case,  still  another  difficulty  arises :  for,  according  to  the 
circumstances  and  nature  of  the  acts  in  question,  they  may 
prove  nothing  more  than  a  simple  continuation  or  extension 
of  the  treaty, — which  is  very  different  from  a  renewal,  espe- 
cially as  to  the  term  of  duration.  For  instance,  England  has  [  214  J 
entered  into  a  subsidiary  treaty  with  a  German  prince,  who  is 
to  keep  on  foot,  during  ten  years,  a  stated  number  of  troops 
at  the  disposal  of  that  country,  on  condition  of  receiving  from 
her  a  certain  yearly  sum.  The  ten  years  being  expired,  the 
king  of  England  causes  the  sum  stipulated  for  one  year  to  be 

(125)  See,  in  general,  Grotius,  b.  3,     to  47,  615  to  630,  and  ii.  Index,  tit 
c.  2;  and  1  Chitty's  Com.  Law,  38     Treaties. 

309 


214  OF  THE  DISSOLUTION  AND  RENEWAL  OF  TREATIES. 

BOOK  ii.  paid :  the  ally  receives  it :  thus  the  treaty  is  indeed  tacitly 
CHAP,  xni.  continued  for  one  year ;  but  it  cannot  be  said  to  be  renewed ; 
for  the  transaction  of  that  year  does  not  impose  an  obligation 
of  doing  the  same  thing  for  ten  years  successively.  But,  sup- 
posing a  sovereign  has,  in  consequence  of  an  agreement  with 
a  neighbouring  state,  paid  her  a  million  of  money  for  permis- 
sion to  keep  a  garrison  in  one  of  her  strongholds  during  ten 
years, — if,  at  the  expiration  of  that  term,  the  sovereign,  in- 
stead of  withdrawing  his  garrison,  makes  his  ally  a  tender  of 
another  million,  and  the  latter  accepts  it,  the  treaty  is,  in 
this  case,  tacitly  renewed. 

When  the  term  for  which  the  treaty  was  made  is  expired, 
each  of  the  allies  is  perfectly  free,  and  may  consent  or  refuse 
to  renew  it,  as  he  thinks  proper.  It  must,  however,  be  con- 
fessed, that,  if  one  of  the  parties,  who  has  almost  singly 
reaped  all  the  advantages  of  the  treaty,  should,  without  just 
and  substantial  reasons,  refuse  to  renew  it  now  that  he  thinks 
he  will  no  longer  stand  in  need  of  it,  and  foresees  the  time 
approaching  when  his  ally  may  derive  advantage  from  it  in 
turn, — such  conduct  would  be  dishonourable,  inconsistent 
with  that  generosity  which  should  characterize  sovereigns, 
and  widely  distant  from  those  sentiments  of  gratitude  and 
friendship  that  are  due  to  an  old  and  faithful  ally.  It  is  but 
too  common  to  see  great  potentates,  when  arrived  at  the  sum- 
mit of  power,  neglect  those  who  have  assisted  them  in  attain- 
ing it. 

§  200.  How      Treaties  contain  promises  that  are  perfect  and  reciprocal, 
a  treaty  is    If  one  Of  tne  allies  fails  in  his  engagements,  the  other  may 
wher^viola  comPe^  n^m  to  fulfil  them : — a  perfect  promise  confers  a  right 
ted  by  one   *°  do  so.     But,  if  the  latter  has  no  other  expedient  than  that 
of  the  con-  of  arms  to  force  his  ally  to  the  performance  of  his  promises, 
tracting       he  win  sometimes  find  it  more  eligible  to  cancel  the  promises 
parties.        Qn  ^jg  Qwn  &^e  ajg()^  an(j  ^Q  Dissolve  the  treaty.     He  has  un- 
doubtedly a  right  to  do  this,  since  his  promises  were  made 
only  on  condition  that  the  ally  should,  on  his  part,  execute 
every  thing  which  he  had  engaged  to  perform.     The  party, 
therefore,  who  is  offended  or  injured  in  those  particulars 
which  constitute  the  basis  of  the  treaty,  is  at  liberty  to 
choose  the  alternative  of  either  compelling  a  faithless  ally  to 
fulfil  his  engagements,  or  of  declaring  the  treaty  dissolved 
by  his  violation  of  it.     On  such  an  occasion,  prudence  and 
wise  policy  will  point  out  the  line  of  conduct  to  be  pursued. 
§201.  The       But  when  there  exist  between  allies  two  or  more  treaties, 
violation  of  different  from  and  independent  of  each  other,  the  violation 
docs'not3''    °^  one  °^  t^lose  treat^es  does  not  directly  disengage  the  in- 
cancel  an-   jured  Par*y  from  the  obligations  he  has  contracted  in  the 
other.          others :  for,  the  promises  contained  in  these  do  not  depend 
on  those  included  in  the  violated  treaty.     But  the  offended 
[  215  ]  ally  may,  on  the  breach  of  one  treaty  by  the  other  party, 
threaten  him  with  a  renunciation,  on  his  own  part,  of  all  the 

310 


OF  THE  DISSOLUTION  AND  RENEWAL  OF  TREATIES.  215 

other  treaties  by  which  they  are  united, — and  may  put  his  BOOK  n. 
threats  in  execution  if  the  other  disregards  them.  For,  if  any  CHAP.  xin. 
one  wrests  or  withholds  from  me  my  right,  I  may,  in  the  state 
of  nature,  in  order  to  oblige  him  to  do  me  justice,  to  punish 
him,  or  to  indemnify  myself,  deprive  him  also  of  some  of  his 
rights,  or  seize  and  detain  them  till  I  have  obtained  complete 
satisfaction.  And,  if  recourse  is  had  to  arms,  in  order  to 
obtain  satisfaction  for  the  infringement  of  that  treaty,  the 
offended  party  begins  by  stripping  his  enemy  of  all  the  rights 
which  had  accrued  to  him  from  the  different  treaties  subsist- 
ing between  them :  and  we  shall  see,  in  treating  of  war,  that 
he  may  do  this  with  justice. 

Some  writers*  would  extend  what  we  have  just  said  to  the  §  202.  The 
different  articles  of  a  treaty  which  have  no  connection  with  violation  of 
the  article  that  has  been  violated, — saying  we  ought  to  con-JJ^J^j! 
sider  those  several  articles  as  so  many  distinct  treaties  con-  ^a*  cancci 
eluded  at  the  same  time.     They  maintain,  therefore,  that,  if  the  whole, 
either  of  the  allies  violates  one  article  of  the  treaty,  the  other  (126) 
has  not  immediately  a  right  to  cancel  the  entire  treaty,  but 
that  he  may  either  refuse,  in  his  turn,  what  he  had  promised 
with  a  view  to  the  violated  article,  or  compel  his  ally  to  fulfil 
his  promises  if  there  still  remains  a  possibility  of  fulfilling 
them, — if  not,  to  repair  the  damage ;  and  that  for  this  pur- 
pose he  may  threaten  to  renounce  the  entire  treaty, — a  menace 
which  he  may  lawfully  put  in  execution,  if  it  be  disregarded 
by  the  other.     Such  undoubtedly  is  the  conduct  which  pru- 
dence, moderation,  the  love  of  peace,  and  charity  would  com- 
monly prescribe  to  nations.     Who  will  deny  this,  and  madly 
assert  that  sovereigns  are  allowed  to  have  immediate  recourse 
to  arms,  or  even  to  break  every  treaty  of  alliance  and  friend- 
ship, for  the  least  subject  of  complaint  ?     But  the  question 
here  turns  on  the  simple  right,  and  not  on  the  measures  which 
are  to  be  pursued  in  order  to  obtain  justice  ;  and  the  principle 
upon  which  those  writers  ground  their  decision,  appears  to 
me  utterly  indefensible.     We  cannot  consider   the  several 
articles  of  the  same  treaty  as  so  many  distinct  and  independ- 
ent treaties :  for,  though  we  do  not  see  any  immediate  con- 
nection between  some  of  those  articles,  they  are  all  connected 

*  See  Wolfius,  Jus  Gent.  §  432.  aliens  but  as  native  subjects  of  Great 

(126)  In  Sutton  v.  Sutton,  1  Russ.  &  Britain,  and  capable  of  inheriting  and 

Mylne  Rep.  663,  A.  D.  1830,  it  was  holding  such  lands,  notwithstanding  a 

held  in  the  Court  of  Chancery,  that,  subsequent  war  between  the  two  coun- 

under  the  treaty  of  peace,  19  Nov.  1794,  tries,  and  this  in  respect  of  the  express 

between  Great  Britain  and  (the  United  provision  which  prevents  a  subsequent 

States  of}-  America,  the  act  of  37  Geo.  3,  war  from  wholly  determining  that  part  of 

c.  97,  passed  for  the  purpose  of  carrying  the  treaty.  The  Master  of  the  Rolls  there 

such  treaty  into  execution,  American  ci-  said,  «  It  is  a  reasonable  construction, 

tizens,  who  held  lands  i»  Great  Britain  that  it  was  the  intention  of  the  treaty 

on  the  28th  Oct.  1795,  and  their  heirs  that  the  operation  of  the  treaty  should 

and  assigns,  are  at  all  times  to  be  consi-  be  permanent,  and  not  depend  upon  the 

dered,  so  far  as  regards  these  lands,  not  as  continuance  of  a  state  of  peace." 

311 


215  OF  THE  DISSOLUTION  AND  RENEWAL  OF  TREATIES. 

BOOK  n.  by  this  common  relation,  viz.  that  the  contracting  powers 
CHAP,  xiii.  nave  agreed  to  some  of  them  in  consideration  of  the  others, 
and  by  way  of  compensation.  I  would  perhaps  never  have 
consented  to  this  article,  if  my  ally  had  not  granted  me  an- 
other, which  in  its  own  nature  has  no  relation  to  it.  Every 
thing,  therefore,  which  is  comprehended  in  the  same  treaty, 
is  of  the  same  force  and  nature  as  a  reciprocal  promise,  unless 
where  a  formal  exception  is  made  to  the  contrary.  Grotius 
very  properly  observes  that  "  every  article  of  a  treaty  carries 
with  it  a  condition,  by  the  non-performance  of  which  the 
treaty  is  wholly  cancelled."*  He  adds,  that  a  clause  is  some- 
times inserted  to  the  following  effect,  viz.  "that  the  violation 
of  any  one  of  the  articles  shall  not  cancel  the  whole  treaty," 
in  order  that  one  of  the  parties  may  not  have,  in  every  slight 
offence,  a  pretext  for  receding  from  his  engagements.  This 
precaution  is  extremely  prudent,  and  very  conformable  to 
the  care  which  nations  ought  to  take  of  preserving  peace, 
[  216  ]  and  rendering  their  alliances  durable.  (127) 
§  203.  The  In  the  same  manner  as  a  personal  treaty  expires  at  the 
treaty  is  void  death  of  the  king  who  has  contracted  it,  a  real  treaty  is  dis- 
by  the  de-  solved,  if  one  of  the  allied  nations  is  destroyed, — that  is  to 
one^fThe  sav'  no*  on^  ^  *ke  men  who  compose  it  happen  all  to  perish, 
contracting  but,  also  if,  from  any  cause  whatsoever,  it  loses  its  national 
powers.  quality,  or  that  of  a  political  and  independent  society.  Thus, 
when  a  state  is  destroyed  and  the  people  are  dispersed,  or 
when  they  are  subdued  by  a  conqueror,  all  their  alliances  and 
treaties  fall  to  the  ground  with  the  public  power  that  had 
contracted  them.  But  it  is  here  to  be  observed,  that  treaties 
or  alliances  which  impose  a  mutual  obligation  to  perform  cer- 
tain acts,  and  whose  existence  consequently  depends  on  that 
of  the  contracting  powers,  are  not  to  be  confounded  with  those 
contracts  by  which  a  perfect  right  is  once  for  all  acquired, 
independent  of  any  mutual  performance  of  subsequent  acts. 
If,  for  instance,  a  nation  has  for  ever  ceded  to  a  neighbouring 
prince  the  right  of  fishing  in  a  certain  river,  or  that  of  keep- 
ing a  garrison  in  a  particular  fortress,  that  prince  does  not 
lose  his  rights,  even  though  the  nation  from  whom  he  has  re- 
ceived them  happens  to  be  subdued,  or  in  any  other  manner 
subjected  to  a  foreign  dominion.  His  rights  do  not  depend 
on  the  preservation  of  that  nation  :  she  had  alienated  them ; 
and  the  conqueror  by  whom  she  has  been  subjugated  can  only 
take  what  belonged  to  her.  In  the  same  manner,  the  debts 
of  a  nation,  or  those  for  which  the  sovereign  has  mortgaged 
any  of  his  towns  or  provinces,  are  not  cancelled  by  conquest. 
The  king  of  Prussia,  on  acquiring  Silesia  by  conquest  and  by 
the  treaty  of  Breslau,  took  upon  himself  the  debts  for  which 

*  Grotius  de  Jure  Belli  et  Pacis,  lib.  1  Russ.  &  Mylne,  663,  is  an  express 

ii.  cap.  xv.  §  15.  decision  upon  such  a  provision  even  by 

(127)  The  case  of  Button  v.  Sutton,  implication. 
312 


OF  THE  DISSOLUTION  AND  RENEWAL  OF  TREATIES.  216 

that  province  stood  mortgaged  to  some  English  merchants.    BOOK  n. 
In  fact,  his  conquest  extended  no  further  than  the  acquisition  CHAP,  xm. 
of  those  rights  which  the  house  of  Austria  had  possessed  over 
the  country ;  and  he  could  only  take  possession  of  Silesia, 
such  as  he  found  it  at  the  time  of  the  conquest,  with  all  its 
rights  and  all  its  burdens.     For  a  conqueror  to  refuse  to  pay 
the  debts  of  a  country  he  has  subdued,  would  be  robbing  the 
creditors,  with  whom  he  is  not  at  war. 

Since  a  nation  or  a  state,  of  whatever  kind,  cannot  make  §  204.  Alli- 
any  treaty  contrary  to  those  by  which  she  is  actually  bound  ances  of  a 
(§  165),  she  cannot  put  herself  under  the  protection  of  another  j^6^* 
state,  without  reserving  all  her  alliances  and  all  her  existing  wards  put 
treaties.     For,  the  convention  by  which  a  state  places  herself  herself  un- 
under  the  protection  of  another  sovereign,  is  a  treaty  (§  175) :  der  the  pro- 
if  she  does  it  of  her  own  accord,  she  ought  to  do  it  in  such  a  j^£gr°f 
manner,  that  the  new  treaty  may  involve  no  infringement  of 
her  pre-existing  ones.     We  have  seen  (§  176)  what  rights  a  [  217  ] 
nation  derives,  in  a  case  of  necessity,  from  the  duty  of  self- 
preservation. 

The  alliances  of  a  nation  are  therefore  not  dissolved  when 
she  puts  herself  under  the  protection  of  another  state,  unless 
they  be  incompatible  with  the  conditions  of  that  protection. 
The  ties  by  which  she  was  bound  to  her  former  allies  still  sub- 
sist, and  those  allies  still  remain  bound  by  their  engagements 
to  her,  as  long  as  she  has  not  put  it  out  of  her  power  to  fulfil 
her  engagements  to  them. 

When  necessity  obliges  a  people  to  put  themselves  under 
the  protection  of  a  foreign  power,  and  to  promise  him  the 
assistance  of  their  whole  force  against  all  opponents  whatso- 
ever, without  excepting  their  allies, — their  former  alliances 
do  indeed  subsist,  so  far  as  they  are  not  incompatible  with 
the  new  treaty  of  protection.  But,  if  the  case  should  happen, 
that  a  former  ally  enters  into  a  war  with  the  protector,  the 
protected  state  will  be  obliged  to  declare  for  the  latter,  to 
whom  she  is  bound  by  closer  ties,  and  by  a  treaty  which,  in 
case  of  collision,  is  paramount  to  all  the  others.  Thus  the 
Nepesinians,  having  been  obliged  to  submit  to  the  Etrurians, 
thought  themselves  afterwards  bound  to  adhere  to  their  treaty 
of  submission  or  capitulation,  preferably  to  the  alliance  which 
had  subsisted  between  them  and  the  Romans :  postquqm  de- 
ditionis,  quam  societatis,  fides  sanctior  erat,  says  Livy.* 

Finally,  as  treaties  are  made  by  the  mutual  agreement  of  §  205. 
the  parties,  they  may  also  be  dissolved  by  mutual  consent,  at  Treaties 
the  free  will  of  the  contracting  powers.     And,  even  though  a  dissolved  by 
third  party  should  find  himself  interested  in  the  preservation  ™JJj™ 
of  the  treaty,  and  should  suffer  by  its  dissolution, — yet,  if  he 
had  no  share  in  making  such  treaty,  and  no  direct  promise 
had  been  made  to  him,  those  who  have  reciprocally  made  pro- 

*  Lib.  vi.  cap.  x. 
40  2  B  313 


217  OP  OTHER  PUBLIC  CONVENTIONS,  ETC. 

BOOK  n.  mises  to  each  other,  which  eventually  prove  advantageous  to 
CHAP,  xin.  that  third  party,  may  also  reciprocally  release  each  other 
from  them,  without  consulting  him,  or  without  his  having  a 
right  to  oppose  them.  Two  monarchs  have  bound  themselves 
by  a  mutual  promise  to  unite  their  forces  for  the  defence  of  a 
neighbouring  city ;  that  city  derives  advantage  from  their 
assistance ;  but  she  has  no  right  to  it ;  and,  as  soon  as  the 
two  monarchs  think  proper  mutually  to  dispense  with  their 
engagements,  she  will  be  deprived  of  their  aid,  but  can  have 
no  reason  to  complain  on  the  occasion,  since  no  promise  had 
been  made  to  her. 


[  218  ]  CHAP.  XIV. 

CHAP,  xiv.  OF  OTHER  PUBLIC  CONVENTIONS, — OF  THOSE  THAT  ARE  MADE 
BY  SUBORDINATE  POWERS, — PARTICULARLY  OF  THE  AGREE- 
MENT CALLED  IN  LATIN  SPONSIO, — AND  OF  CONVENTIONS  OF 
SOVEREIGNS  WITH  PRIVATE  PERSONS. 

§  206.  Con-  THE  public  compacts,  called  conventions,  articles  of  agree- 
ventions  ment,  &c.,  when  they  are  made  between  sovereigns,  differ 
sovereigns.  fr°m  treaties  only  in  their  object  (§  153).  What  we  have 
said  of  the  validity  of  treaties,  of  their  execution,  of  their 
dissolution,  and  of  the  obligations  and  rights  that  flow  from 
them,  is  all  applicable  to  the  various  conventions  which  sove- 
reigns may  conclude  with  each  other.  Treaties,  conventions, 
and  agreements  are  all  public  engagements,  in  regard  to 
which  there  is  but  one  'and  the  same  right,  and  the  same 
rules.  We  do  not  here  wish  to  disgust  the  reader  by  unne- 
cessary repetitions :  and  it  were  equally  unnecessary  to  enter 
into  an  enumeration  of  the  various  kinds  of  these  conven- 
tions, which  are  always  of  the  same  nature,  and  differ  only 
in  the  matter  which  constitutes  their  object. 

§207.  But  there  are  public  conventions  made  by  subordinate 

^hosf™j.de powers,  in  virtue  either  of  an  express  mandate  from  the 
natTpoiers.  sovereign,  or  of  the  authority  with  which  they  are  invested 
by  the  terms  of  their  commission,  and  according  as  the  nature 
of  the  affairs  with  which  they  are  intrusted  may  admit  or  re- 
quire the  exercise  of  that  authority. 

The  appellation  of  inferior  or  subordinate  powers  is  given 
to  public  persons  who  exercise  some  portion  of  the  sovereignty 
in  the  name  and  under  the  authority  of  the  sovereign :  such 
are  magistrates  established  for  the  administration  of  justice, 
generals  of  armies,  and  ministers  of  state. 

When,  by  an  express  order  from  their  sovereign  on  the 
particular  occasion,  and  with  sufficient  powers  derived  from 
him  for  the  purpose,  those  persons  form  a  convention,  such 


OF   OTHER   PUBLIC   CONVENTIONS,  ETC.  218 

convention  is  made  in  the  name  of  the  sovereign  himself,  who  BOOK  n. 
contracts  by  the  mediation  and  ministry  of  his  delegate  or  CHAP.  XIT. 
proxy :  this  is  the  case  we  have  mentioned  in  §  156. 

But  public  persons,  by  virtue  of  their  office,  or  of  the  com- 
mission given  to  them,  have  also  themselves  the  power  of 
making  conventions  on  public  affairs,  exercising  on  those 
occasions  the  right  and  authority  of  the  sovereign  by  whom 
they  are  commissioned.  There  are  two  modes  in  which  they 
acquire  that  power ; — it  is  given  to  them  in  express  terms  by 
the  sovereign :  or  it  is  naturally  derived  from  their  commis- 
sion itself, — the  nature  of  the  affairs  with  which  these  persons 
and  intrusted,  requiring  that  they  should  have  a  power  to 
make  such  conventions,  especially  in  cases  where  they  cannot 
await  the  orders  of  their  sovereign.  Thus,  the  governor  of  a  [  219  ] 
town,  and  the  general  who  besieges  it,  have  a  power  to  settle 
the  terms  of  capitulation  ;  and  whatever  agreement  they  thus 
form  within  the  terms  of  their  commission,  is  obligatory  on 
the  state  or  sovereign  who  has  invested  them  with  the  power 
by  which  they  conclude  it.  As  conventions  of  this  nature 
take  place  principally  in  war,  we  shall  treat  of  them  more  at 
large  in  Book  III. 

If  a  public  person,  an  ambassador,  or  a  general  of  an  army,  §  208. 
exceeding  the  bounds  of  his  commission,  concludes  a  treaty  Treaties 
or  a  convention  without  orders  from  the  sovereign,  or  without  jj°n°lu^c 
being  authorized  to  do  it  by  virtue  of  his  office,  the  treaty  is  person^ 
null,  as  being  made  without  sufficient  powers  (§  157) :  it  can-  without 
not  become  valid  without  the  express  or  tacit  ratification  of  orders  from 
the  sovereign.     The  express  ratification  is  a  written  deed  by  th.e  sove~ 
which  the  sovereign  approves  the  treaty,  and  engages  to  ob-  without* 
serve  it.     The  tacit  ratification  is  implied  by  certain  steps  sufficient 
which  the  sovereign  is  justly  presumed  to  take  only  in  pur-  powers, 
suance  of  the  treaty,  and  which  he  could  not  be  supposed  to 
take  without  considering  it  as  concluded  and  agreed  upon. 
Thus,  on  a  treaty  of  peace  being  signed  by  public  ministers 
who  have  even  exceeded  the  orders  of  their  sovereigns,  if  one 
of  the  sovereigns  causes  troops  to  pass  on  the  footing  of 
friends  through  the  territories  of  his  reconciled  enemy,  he 
tacitly  ratifies  the  treaty  of  peace.     But  if,  by  a  reservatory 
clause  of  the  treaty,  the  ratification  of  the  sovereign  be  re- 
quired,— as  such  reservation  is  usually  understood  to  imply 
an  express  ratification,  it  is  absolutely  requisite  that  the  treaty 
be  thus  expressly  ratified  before  it  can  acquire  its  full  force. 

By  the  Latin  term,  sponsio,  we  express  an  agreement  re-  §  209.  The 
lating  to  affairs  of  state,  made  by  a  public  person,  who  ex-1 
ceeds  the  bounds  of  his  commission,  and  acts  without  the 
orders  or  command  of  the  sovereign.  The  person  who  treats 
for  the  state  in  this  manner  without  being  commissioned  for 
the  purpose,  promises  of  course  to  use  his  endeavours  for  pre- 
vailing on  the  state  or  sovereign  to  ratify  the  articles  he  has 
agreed  to :  otherwise  his  engagement  would  be  nugatory  and 

315 


219  OF   OTHER   PUBLIC   CONVENTIONS,  ETC. 

BOOK  n.    illusive.     The  foundation  of  this  agreement  can  be  no  other, 

CHAP,  xiv.  on  either  side,  than  the  hope  of  such  ratification. 

The  Roman  history  furnishes  us  with  various  instances  of 
such  agreements : — the  one  that  first  arrests  our  attention  is 
that  which  was  concluded  at  the  Furcse  Caudinse — the  most 
famous  instance  on  record,  and  one  that  has  been  discussed 
by  the  most  celebrated  writers.  The  consuls  Titus  Veturius 
Calvinus  and  Spurius  Postumius,  with  the  Roman  army,  being 
enclosed  in  the  defiles  of  the  Furcse  Caudime,  without  hope 
of  escaping,  concluded  a  shameful  agreement  with  the  Sam- 
nites — informing  them,  however,  that  they  could  not  make  a 
real  public  treaty  (fcedus)  without  orders  from  the  Roman 
people,  without  the  feciales,  and  the  ceremonies  consecrated 

[  220  ]  by  custom.  The  Samnite  general  contented  himself  with 
exacting  a  promise  from  the  consuls  and  principal  officers  of 
the  army,  and  obliging  them  to  deliver  him  six  hundred  host- 
ages ;  after  which,  having  made  the  Roman  troops  lay  down 
their  arms,  and  obliged  them  to  pass  under  the  yoke,  he  dis- 
missed them.  The  senate,  however,  refused  to  accede  to  the 
treaty, — delivered  up  those  who  had  concluded  it  to  the  Sam- 
nites,  who  refused  to  receive  them — and  then  thought  them- 
selves free  from  all  obligation,  and  screened  from  all  reproach.* 
Authors  have  entertained  very  different  sentiments  of  this 
conduct.  Some  assert,  that,  if  Rome  did  not  choose  to  ratify 
the  treaty,  she  ought  to  have  replaced  things  in  the  same  situ- 
ation they  were  in  before  the  agreement,  by  sending  back  the 
whole  army  to  their  encampment  at  the  Furcae  Caudinoe:  and 
this  the  Samnites  also  insisted  upon.  I  confess  that  I  am 
not  entirely  satisfied  with  the  reasonings  I  have  found  on 
this  question,  even  in  authors  whose  eminent  superiority  I 
am  in  other  respects  fully  inclined  to  acknowledge.  Let  us 
therefore  endeavour,  with  the  aid  of  their  observations,  to  set 
the  affair  in  a  new  light. 

§  210.  The  It  presents  two  questions — first,  what  is  the  person  bound 
to  ^°'  W^°  kas  ma^e  an  agreement  (sponsor),  if  the  state  dis- 
avows  it? — Secondly,  what  is  the  state  bound  to  do?  But, 

agreement  previous  to  the  discussion  of  these  questions,  it  is  necessary 
to  observe  with  Grotius,f  that  the  state  is  not  bound  by  an 
agreement  of  that  nature.  This  is  manifest,  even  from  the 
definition  of  the  agreement  called  sponsio.  The  state  has 
not  given  orders  to  conclude  it :  neither  has  she  in  any  man- 
ner whatever  conferred  the  necessary  powers  for  the  pur- 
pose: she  has  neither  expressly  given  them  by  her  injunc- 
tions or  by  a  plenipotentiary  commission,  nor  tacitly  by  a 
natural  or  necessary  consequence  of  the  authority  intrusted 
to  him  who  makes  the  agreement  (sponsori).  The  general 
of  an  army  has,  indeed,  by  virtue  of  his  commission,  a  power 
to  enter,  as  circumstances  may  require,  into  a  private  con- 

*  Livy,  lib.  be.          f  De  Jure  Belli  et  Pacis,  lib.  ii.  cap.  iv.  §  16. 
316 


OF   OTHER   PUBLIC    CONVENTIONS,  ETC.  220 

vention, — a  compact  relative  to  himself,  to  his  troops,  or  to    BOOK  n. 
the  occurrences  of  war :  but  he  has  no  power  to  conclude  a  CHAP,  xiv. 
treaty  of  peace.     He  may  bind  himself,  and  the  troops  under 
his  command,  on  all  the  occasions  where  his  functions  re- 
quire that  he  should  have  the  power  of  treating ;  but  he  can- 
not bind  the  state  beyond  the  extent  of  his  commission. 

Let  us  now  see  to  what  the  person  promising  (sponsor)  is  §211.  To 
bound,  when  the  state  disavows  the  agreement.  We  ought  what  the 
not  here  to  deduce  our  arguments  from  the  rules  which  ob-  Jou^Jwh^n 
tain  between  private  individuals  under  the  law  of  nature :  it  js  <&.. 
for,  the  nature  of  the  things  in  question,  and  the  situation  avowed, 
of  the  contracting  parties,  necessarily  make  a  difference  be- 
tween the  two  cases.  It  is  certain  that,  between  individuals, 
he  who  purely  and  simply  promises  what  depends  on  the  will 
of  another,  without  being  authorized  to  make  such  promise, 
is  obliged,  if  the  other  disavows  the  transaction,  to  accom-  [  221  ] 
plish  himself  what  he  has  promised, — to  give  an  equivalent — 
to  restore  things  to  their  former  state ;  or,  finally,  to  make 
full  compensation  to  the  person  with  whom  he  has  treated, 
according  to  the  various  circumstances  of  the  case.  His 
promise  (sponsio)  can  be  understood  in  no  other  light.  But 
this  is  not  the  case  with  respect  to  a  public  person,  who,  with- 
out orders  and  without  authority,  engages  for  the  perform- 
ance of  his  sovereign.  The  question  in  such  case  relates  to 
things  that  infinitely  surpass  his  power  and  all  his  faculties — 
things  which  he  can  neither  execute  himself  nor  cause  to  be 
executed,  and  for  which  he  cannot  offer  either  an  equivalent 
or  a  compensation  in  any  wise  adequate :  he  is  not  even  at 
liberty  to  give  the  enemy  what  he  has  promised,  without  au- 
thority: finally,  it  is  equally  out  of  his  power  to  restore 
things  entirely  to  their  former  state.  The  party  who  treats 
with  him  cannot  expect  any  thing  of  this  nature.  If  the 
promiser  has  deceived  him  by  saying  he  was  sufficiently  au- 
thorized, he  has  a  right  to  punish  him.  But  if,  like  the 
Roman  consuls  at  the  Furcae  Caudinse,  the  promiser  has 
acted  with  sincerity,  informing  him  that  he  had  not  a  power 
to  bind  the  state  by  a  treaty, — nothing  else  can  be  presumed, 
but  that  the  other  party  was  willing  to  run  the  risk  of  making 
a  treaty  that  must  become  void,  if  not  ratified, — hoping  that  a 
regard  for  him  who  had  promised,  and  for  the  hostages,  would 
induce  the  sovereign  to  ratify  what  had  been  thus  concluded. 
If  the  event  deceives  his  hopes,  he  can  only  blame  his  own 
imprudence.  An  eager  desire  of  obtaining  peace  on  advan- 
tageous conditions,  and  the  temptation  of  some  present  ad- 
vantages, may  have  been  his  only  inducements  to  make  so 
hazardous  an  agreement.  This  was  judiciously  observed  by 
the  consul  Postumius  himself,  after  his  return  to  Rome.  In 
his  speech  to  the  senate,  as  given  to  us  by  Livy,  "Your 
generals,"  said  he,  "and  those  of  the  enemy,  were  equally 
guilty  of  imprudence, — we,  in  incautiously  involving  ourselves 

2B2  317 


221  OF  OTHER  PUBLIC  CONVENTIONS,  ETC. 

BOOK  ii.  in  a  dangerous  situation, — they,  in  suffering  a  victory  to  escape 
CHAP  xiv.  them,  of  which  the  nature  of  the  ground  gave  them  a  cer- 
tainty ;  still  distrusting  their  own  advantages,  and  hasting, 
at  any  price,  to  disarm  men  who  were  ever  formidable  while 
they  had  arms  in  their  hands.  Why  did  they  not  keep  us 
shut  up  in  our  camp  ?  Why  did  they  not  send  to  Rome,  in 
order  to  treat  for  peace,  on  sure  grounds,  with  the  senate  and 
the  people?" 

It  is  manifest  that  the  Samnites  contented  themselves  with 
the  hope  that  the  engagement  which  the  consuls  and  principal 
officers  had  entered  into,  and  the  desire  of  saving  six  hundred 
knights,  left  as  hostages,  would  induce  the  Romans  to  ratify 
the  agreement,  considering,  that,  at  all  events,  they  should 
still  have  those  six  hundred  hostages,  with  the  arms  and  bag- 
gage of  the  army,  and  the  vain,  or  rather,  as  it  is  proved  by 
its  consequences,  the  fatal  glory,  of  having  made  them  pass 
under  the  yoke. 

Under  what  obligation  then  were  the  consuls,  and  all  the 
others  who  had  joined  with  them  in  the  promise  (sponsor  es)  ? 
They  themselves  judged  that  they  ought  to  be  delivered  up  to 
[  222  ]  the  Samnites.  This  was  not  a  natural  consequence  of  the 
agreement  (spomionis] ;  and  from  the  observations  above 
made,  it  does  not  appear  that  a  general  in  such  circumstances, 
having  promised  things  which  the  promisee  well  knew  to  be 
out  of  his  power,  is  obliged,  on  his  promise  being  disavowed, 
to  surrender  his  own  person  by  way  of  compensation.  But, 
as  he  has  a  power  expressly  to  enter  into  such  an  engagement 
which  lies  fairly  within  the  bounds  of  his  commission,  the 
custom  of  those  times  had  doubtless  rendered  such  engage- 
ment a  tacit  clause  of  the  agreement  called  sponsio,  since  the 
Romans  delivered  up  all  the  sponsores,  all  those  who  had  pro- 
mised: this  was  a  maxim  of  their  fecial  law.* 

If  the  sponsor  has  not  expressly  engaged  to  deliver  himself 
up,  and  if  established  custom  does  not  lay  him  under  an  obli- 
gation to  do  so,  it  would  seem  that  he  is  bound  to  nothing 
further  by  his  promise  than  honestly  to  endeavour,  by  every 
lawful  means,  to  induce  the  sovereign  to  ratify  what  he  has 
promised :  and  there  cannot  exist  a  doubt  in  the  case,  provided 
the  treaty  be  at  all  equitable,  advantageous  to  the  state,  or 
supportable  in  consideration  of  the  misfortune  from  which  it 
has  preserved  her.  But,  to  set  out  with  the  intention  of  mak- 
ing a  treaty  the  instrument  to  ward  off  a  deadly  blow  from 
the  state,  and  soon  after  to  advise  the  sovereign  to  refuse  his 
ratification,  not  because  the  treaty  is  insupportable,  but  be- 

*  I  have  said  in  my  preface,  that  it  gave  rise.  They  had  also  the  care 
the  fecial  law  of  the  Romans  was  their  of  the  ceremonies  on  the  declaration 
law  of  war.  The  college  of  the  feciales  of  war,  and  on  concluding  treaties  of 
were  consulted  on  the  causes  that  peace.  The  feciales  were  likewise  con- 
might  authorize  the  nation  to  engage  suited,  and  their  agency  employed,  in 
in  a  war,  and  on  the  questions  to  which  all  public  treaties. 


OF  OTHER  PUBLIC  CONVENTIONS,  ETC.  222 

cause  an  advantage  may  be  taken  of  its  having  been  concluded  BOOK  n. 
without  authority — such  a  proceeding  would  undoubtedly  be  CHAP-  "^ 
a  fraudulent  and  shameful  abuse  of  the  faith  of  treaties.  But, 
what  must  the  general  do,  who,  in  order  to  save  his  army,  has 
been  forced  to  conclude  a  treaty  that  is  detrimental  or  dis- 
honourable to  the  state  ?  Must  he  advise  the  sovereign  to 
ratify  it  ?  He  will  content  himself  with  laying  open  the  mo- 
tives of  his  conduct,  and  the  necessity  that  obliged  him  to 
treat :  he  will  show,  as  Postumius  did,  that  he  alone  is  bound, 
and  that  he  consents  to  be  disowned  and  delivered  up  for  the 
public  safety.  If  the  enemy  are  deceived,  it  is  through  their 
own  folly.  Was  the  general  bound  to  inform  them  that,  in 
all  probability,  his  promises  would  not  be  ratified  ?  It  would 
be  too  much  to  require  this  of  him.  In  such  a  case,  it  is 
sufficient  that  he  does  not  impose  on  the  enemy  by  pretend- 
ing to  more  extensive  powers  than  he  really  possesses,  but 
contents  himself  with  embracing  the  overtures  which  they 
make  to  him,  without,  on  his  side,  holding  forth  any  delusive 
hopes  to  decoy  them  into  a  treaty.  It  is  the  enemy's  business 
to  take  all  possible  precautions  for  their  own  security  :  if  they 
neglect  them,  why  should  not  the  general  avail  himself  of 
their  imprudence,  as  of  an  advantage  presented  to  him  by 
the  hand  of  fortune  ?  "It  is  she,"  said  Postumius,  "who  has 
saved  our  army,  after  having  put  it  in  danger.  The  enemy's 
head  was  turned  in  his  prosperity ;  and  his  advantages  have 
been  no  more  to  him  than  a  pleasant  dream." 

If  the  Samnites  had  only  required  of  the  Roman  generals 
and  army  such  engagements  as  the  nature  of  their  situation, 
and  their  commission,  empowered  them  to  enter  into, — if  they 
had  obliged  them  to  surrender  themselves  prisoners  of  war, — 
or  if,  from  their  inability  to  hold  them  all  prisoners,  they  had  [  223  ] 
dismissed  them,  upon  their  promise  not  to  bear  arms  against 
them  for  some  years,  in  case  Rome  should  refuse  to  ratify  the 
peace, — the  agreement  would  have  been  valid,  as  being  made 
with  sufficient  powers ;  and  the  whole  army  would  have  been 
bound  to  observe  it ;  for,  it  is  absolutely  necessary  that  the 
troops,  or  their  officers,  should  have  a  power  of  entering  into  a 
contract  on  those  occasions,  and  upon  that  footing.  This  is  the 
case  of  capitulations,  of  which  we  shall  speak  in  treating  of  war. 

If  the  promiser  has  made  an  equitable  and  honourable 
convention,  on  an  affair  of  such  a  nature,  that,  in  case  the 
convention  be  disallowed,  he  still  has  it  in  his  own  power  to 
indemnify  the  party  with  whom  he  has  treated, — he  is  pre- 
sumed to  have  personally  pledged  himself  for  suoh  indemnifi- 
cation ;  and  he  is  bound  to  make  it,  in  order  to  discharge  his 
promise,  as  did  Fabius  Maximus  in  the  instance  mentioned  by 
Grotius.*  But  there  are  occasions  when  the  sovereign  may 

*  Lib.  ii.  chap.  xv.  §  16.  Fabius  ment  with  the  enemy  which  the  se- 
Maximus  having  concluded  an  agree-  nate  disapproved,  sold  a  piece  of  land 

319 


223  OF  OTHER  PUBLIC  CONVENTIONS,  ETC. 

BOOK  ii.    forbid  him  to  act  in  that  manner,  or  to  give  any  thing  to  the 
CHAP,  xiv.  enemies  of  the  state. 

§212.  To  We  have  shown  that  a  state  cannot  be  bound  by  an  agree- 
what  the  ment  made  without  her  orders,  and  without  her  having  granted 
sovereign  is  any  pOWer  for  that  purpose.  But  is  she  absolutely  free 
from  all  obligation  ?  That  is  the  point  which  now  remains 
for  us  to  examine.  If  matters  as  yet  continue  in  their 
original  situation,  the  state  or  the  sovereign  may  simply 
disavow  the  treaty,  which  is  of  course  done  away  by  such  disa- 
vowal, and  becomes  as  perfect  a  nullity  as  if  it  had  never  ex- 
isted. But  the  sovereign  ought  to  make  known  his  intentions 
as  soon  as  the  treaty  comes  to  his  knowledge ;  not,  indeed, 
that  his  silence  alone  can  give  validity  to  a  convention  which 
the  contracting  parties  have  agreed  not  to  consider  as  valid 
without  his  approbation ;  but  it  would  be  a  breach  of  good 
faith  in  him  to  suffer  a  sufficient  time  to  elapse  for  the  other 
party  to  execute,  on  his  side,  an  agreement  which  he  himself 
is  determined  not  to  ratify. 

If  any  thing  has  already  been  done  in  consequence  of  the 
agreement, — if  the  party,  who  has  treated  with  the  sponsor, 
has  on  his  side  fulfilled  his  engagements,  either  in  the  whole 
or  in  part, — is  the  other  party,  on  disavowing  the  treaty, 
bound  to  indemnify  him,  or  restore  things  to  their  former 
situation  ? — or  is  he  allowed  to  reap  the  fruits  of  the  treaty, 
[_  224  ]  at  the  same  time  that  he  refuses  to  ratify  it  ? — We  should 
here  distinguish  the  nature  of  the  things  that  have  been  exe- 
cuted, and  that  of  the  advantages  which  have  thence  accrued 
to  the  state.  He  who,  having  treated  with  a  public  person 
not  furnished  with  sufficient  powers,  executes  the  agreement 
on  his  side  without  waiting  for  its  ratification,  is  guilty  of  im- 
prudence, and  commits  an  egregious  error,  into  which  he  has 
not  been  led  by  the  state  with  which  he  supposes  he  has  con- 
tracted. If  he  has  given  up  any  part  of  his  property,  the 
other  party  is  not  justifiable  in  taking  advantage  of  his  folly, 
and  retaining  possession  of  what  he  has  so  given.  Thus, 
when  a  state,  thinking  she  has  concluded  a  peace  with  the 
enemy's  general,  has  in  consequence  delivered  up  one  of  her 
strong  places,  or  given  a  sum  of  money,  the  sovereign  of  that 
general  is,  undoubtedly,  bound  to  restore  what  he  has  re- 
ceived, if  he  does  not  choose  to  ratify  the  agreement.  To  act 
otherwise,  would  be  enriching  himself  with  another's  property, 
and  retaining  that  property  without  having  any  title  to  it. 

But,  if  the  agreement  has  given  nothing  to  the  state  which 
she  did  not  before  possess, — if,  as  in  that  of  the  Furcse  Cau- 
dinae,  the  advantage  simply  consists  in  her  escape  from  an 
impending  danger,  her  preservation  from  a  threatened  loss, — 

for   which  he  received   two   hundred  ransom  of  the  prisoners.     Aurel.  Vic- 
thousand  sesterces,  in  order  to  make  tor,  de  Viris  Illustr.     Plutarch's  Life 
good  his  promise.     It  related  to  the  of  Fabius  Maximus. 
320 


OF   OTHER   PUBLIC   CONVENTIONS,    ETC.  224 

such  advantage  is  a  boon  of  fortune,  which  she  may  enjoy  BOOK  n. 
without  scruple.  Who  would  refuse  to  be  saved  by  the  folly  CHAP'  XIY' 
of  his  enemy?  And  who  would  think  himself  obliged  to 
indemnify  that  enemy  for  the  advantage  he  had  suffered  to 
escape  him,  when  no  fraud  had  been  used  to  induce  him  to 
forego  that  advantage  ?  The  Samnites  pretended,  that,  if 
the  Romans  would  not  ratify  the  treaty  made  by  their  con- 
suls, they  ought  to  send  back  the  army  to  the  Furcse  Caudi- 
nae,  and  restore  every  thing  to  its  former  state.  Two  tri- 
bunes of  the  people,  who  had  been  in  the  number  of  the 
sponsores,  and  wished  to  avoid  being  delivered  up,  had  the 
assurance  to  maintain  the  same  doctrine ;  and  some  authors 
have  declared  themselves  of  their  opinion.  What !  the  Sam- 
nites take  advantage  of  conjunctures,  in  order  to  give  law  to 
the  Eomans,  and  to  wrest  from  them  a  shameful  treaty,— 
they  are  so  imprudent  as  to  treat  with  the  consuls,  who  ex- 
pressly declare  themse'ves  unauthorized  to  contract  for  the 
state, — they  suffer  the  Roman  army  to  escape,  after  having 
covered  them  with  infamy, — and  shall  not  the  Romans  take 
advantage  of  the  folly  of  an  enemy  so  void  of  generosity  ? 
Must  they  either  ratify  a  shameful  treaty,  or  restore  to  the 
enemy  all  those  advantages  which  the  situation  of  the  ground 
had  given  them,  but  which  he  had  lost  merely  through  his  own 
folly  ?  Upon  what  principle  can  such  a  decision  be  founded  ? 
Had  Rome  promised  any  thing  to  the  Samnites  ?  Had  she 
prevailed  upon  them  to  let  her  army  go,  previous  to  the  rati- 
fication of  the  agreement  made  by  the  consuls  ?  If  she  had 
received  any  thing  in  consequence  of  that  agreement,  she 
would  have  been  bound  to  restore  it,  as  we  have  already  said, 
because  she  would  have  possessed  it  without  a  title,  on  de- 
claring the  treaty  null.  But  she  had  no  share  in  the  conduct 
of  her  enemies :  she  did  not  contribute  to  the  egregious 
blunder  they  had  committed ;  and  she  might  as  justly  take  [  225  ] 
advantage  of  it,  as  generals  in  war  do  of  the  mistakes  of  an 
unskilful  opponent.  Suppose  a  conqueror  after  having  con- 
cluded a  treaty  with  ministers  who  have  expressly  reserved 
the  ratification  to  their  master,  should  have  the  imprudence 
to  abandon  all  his  conquests  without  waiting  for  such  ratifi- 
cation,— must  the  other,  with  a  foolish  generosity,  invite  him 
back  to  take  possession  of  them  again,  in  case  the  treaty  be 
not  ratified? 

I  confess,  however,  and  freely  acknowledge,  that,  if  the 
enemy  who  suffer  an  entire  army  to  escape  on  the  faith  of  an 
agreement  concluded  with  the  general,  who  is  unprovided 
with  sufficient  powers,  and  a  simple  sponsor, — I  confess,  I 
say,  that,  if  the  enemy  have  behaved  generously,— if  they  had 
not  availed  themselves  of  their  advantages  to  dictate  shame- 
ful or  too  severe  conditions, — equity  requires  that  the  estate 
should  either  ratify  the  agreement  or  conclude  a  new  treaty 
on  just  and  reasonable  conditions,  abating  even  of  her  pre- 
41  321 


225  OF  OTHER  PUBLIC  CONVENTIONS,  ETC. 

BOOK  n.  tensions  as  far  as  the  public  welfare  will  allow.  For,  we 
CHAP,  xiv.  OUght  never  to  abuse  the  generosity  and  noble  confidence 
even  of  an  enemy.  Pufiendorf*  thinks  that  the  treaty  at 
the  Furcse  Caudinae  contained  nothing  that  was  too  severe 
or  insupportable.  That  author  seems  to  make  no  great  ac- 
count of  the  shame  and  ignominy  with  which  it  would  have 
branded  the  whole  republic.  He  did  not  see  the  full  extent 
of  the  Roman  policy,  whicK  would  never  permit  them,  in 
their  greatest  distresses,  to  accept  a  shameful  treaty,  or  even 
to  make  peace  on  the  footing  of  a  conquered  nation : — a  sub- 
lime policy,  to  which  Rome  was  indebted  for  all  her  greatness. 
Finally,  let  us  observe,  that,  when  the  inferior  power  has, 
without  orders,  and  without  authority,  concluded  an  equitable 
and  honourable  treaty,  to  rescue  the  state  from  an  imminent 
danger,  if  the  sovereign  afterwards,  on  seeing  himself  thus 
delivered,  should  refuse  to  ratify  the  treaty,  not  because  he 
thinks  it  a  disadvantageous  one,  but,  merely  through  a  wish 
to  avoid  performing  those  conditions  which  were  annexed  as 
the  price  of  his  deliverance,  he  would  certainly  act  in  oppo- 
sition to  all  the  rules  of  honour  and  equity.  This  would  be  a 
case  in  which  we  might  apply  the  maxim,  summum  jus,  summa 
injuria. 

To  the  example  we  have  drawn  from  the  Roman  history,  let 
us  add  a  famous  one  taken  from  modern  history.  The  Swiss, 
dissatisfied  with  France,  entered  into  an  alliance  with  the  em- 
peror against  Louis  XII.  and  made  an  irruption  into  Burgundy, 
in  the  year  1513.  They  laid  siege  to  Dijon.  La  Trimouille, 
who  commanded  in  the  place,  fearing  that  he  should  be  unable 
to  save  it,  treated  with  the  Swiss,  and,  without  waiting  for  a 
commission  from  the  king,  concluded  an  agreement,  by  virtue 
of  which  the  king  of  France  was  to  renounce  his  pretensions 
to  the  duchy  of  Milan,  and  to  pay  the  Swiss,  by  settled  in- 
stalments, the  sum  of  six  hundred  thousand  crowns ;  whereas 
the  Swiss,  on  their  side,  promised  nothing  further  than  to  re- 
turn home  to  their  own  country, — thus  remaining  at  liberty 
to  attack  France  again,  if  they  thought  proper.  They  re- 
ceived hostages,  and  departed.  The  king  was  very  much  dis- 
satisfied with  the  treaty,  though  it  had  saved  Dijon,  and  rescued 
the  kingdom  from  an  imminent  and  alarming  danger ;  and  he 
[  226  ]  refused  to  ratify  it."f  It  is  certain  that  La  Trimouille  had 
exceeded  the  powers  he  derived  from  his  commission,  espe- 
cially in  promising  that  the  king  should  renounce  the  duchy  of 
Milan.  It  is  probable,  indeed,  that  his  only  view  was  to  rid 
himself  of  an  enemy  whom  it  was  less  difficult  to  overreach 
in  negotiation  than  to  subdue  in  battle.  Louis  was  not  obliged 
to  ratify  and  execute  a  treaty  concluded  without  orders  and 
without  authority;  and,  if  the  Swiss  were  deceived,  they 

*  Jus  Nat.  et  Gent.  lib.  yiii.  cap.  ix.        f  Guicciardini,  book   xii.  chap,  ii.— 
I  12.  De  Watteville's  History  of  the  Helvetic 

Confederacy,  part  ii.  p.  185,  Ac. 
322 


OF  OTHER  PUBLIC  CONVENTIONS,  ETC.  226 

could  only  blame  their  own  imprudence.  But,  as  it  manifestly    BOOK  n. 
appeared  that  La  Trimouille  did  not  behave  towards  them  with  — AP"  XIV- 
candour  and  honesty,  since  he  had  deceived  them  on  the  sub- 
ject of  the  hostages,  by  giving,  in  that  character,  men  of  the 
meanest  rank,  instead  of  four  of  the  most  distinguished  citi- 
zens, as  he  had  promised,* — the  Swiss  would  have  been  justi- 
fiable in  refusing  to  make  peace  without  obtaining  satisfaction 
for  that  act  of  perfidy,  either  by  the  surrender  of  him  who 
was  the  author  of  it,  or  in  some  other  manner. 

The  promises,  the  conventions,  all  the  private  contracts  of  §  213.    Pri- 
the  sovereign,  are  naturally  subject  to  the  same  rules  as  those  vate  con' 
of  private  persons.     If  any  difficulties  arise  on  the  subject,  it  ^eitigu.  * 
is  equally  conformable  to  the  rules  of  decorum,  to  that  deli- 
cacy of  sentiment  which  ought  to  be  particularly  conspicuous 
in  a  sovereign,  and  to  the  love  of  justice,  to  cause  them  to 
be  decided  by  the  tribunals  of  the  state.     And  such  indeed 
is  the  practice  of  all  civilized  states  that  are  governed  by 
settled  laws. 

The  conventions  and  contracts  which  the  sovereign,  in  his  g  214.  Con- 
sovereign  character  and  in  the  name  of  the  state,  forms  with  fractf  madc 
private  individuals  of  a  foreign  nation,  fall  under  the  rules b^™  wel*h 
we  have  laid  down  with  respect  to  public  treaties.     In  fact,  ^nTin  the 
when  a  sovereign  enters  into  a  contract  with  one  who  is  name  of  the 
wholly  independent  of  him  and  of  the  state,  whether  it  be 8tate- 
with  a  private  person,  or  with  a  nation  or  sovereign,  this  cir- 
cumstance does  not  produce  any  difference  in  the  rights  of 
the  parties.     If  the  private  person  who  has  treated  with  the 
sovereign  is  his  subject,  the  rights  of  each  party  in  this  case 
also  are  the  same :  but  there  is  a  difference  in  the  manner  of 
deciding  the  controversies  which  may  arise  from  the  contract. 
That  private  person,  being  a  subject  of  the  state,  is  obliged 
to  submit  his  pretensions  to  the  established  courts  of  justice. 
It  is  added  by  some  writers  on  this  subject,  that  the  sovereign 
may  rescind  those  contracts,  if  they  prove  inimical  to  the 
public  welfare.  Undoubtedly  he  may  do  so,  but  not  upon  any 
principle  derived  from  the  peculiar  nature  of  such  contracts :  [  227  ] 
— it  must  be  either  upon  the  same  principle  which  invalidates 
even  a  public  treaty  when  it  is  ruinous  to  the  state  and  incon- 
sistent with  the  public  safety, — or  by  virtue  of  the  eminent 
domain,  which  gives  the  sovereign  a  right  to  dispose  of  the 
property  of  the  citizens  with  a  view  to  the  common  safety. 
We  speak  here  of  an  absolute  sovereign.     It  is  from  the  con- 
stitution of  each  state  that  we  are  to  learn  who  are  the  per- 
sons, and  what  is  the  power,  entitled  to  contract  in  the  name 
of  the  state,  to  exercise  the  supreme  authority,  and  to  pro- 
nounce on  what  the  public  welfare  requires. 

When  a  lawful  power  contracts  in  the  name  of  the  state,  it  §  215.  They 
lays  an  obligation  on  the  nation  itself,  and  consequently  on  «*  Binding 


on  the  na- 


*  See  De  Watteville's  History  of  the  Helvetic  Confederacy,  p.  190. 

323 


227  OF  OTHER  PUBLIC  CONVENTIONS;  ETC. 

BOOK  n.    all  the  future  rulers  of  the  society.     When,  therefore,  a  prince 
CHAP.  XIY.  kag  tne  power  to  form  a  contract  in  the  name  of  the  state,  he 
tion,  and  on  ]ayg  an  obligation  on  all  his  successors ;  and  these  are  not 
^ors!UC<  '~   less  Dound  than  himself  to  fulfil  his  engagements. 
§  216.  Debts      The  conductor  of  the  nation  may  have  dealings  of  his  own, 
of  the  sove-  and  private  debts ;   and  his  private  property  alone  is  liable 
reign  and     for  fae  discharge  of  such  debts.     But  loans  contracted  for 
j  state.     ^e  gery;[ce  Of  fae  state,  debts  incurred  in  the  administration 
of  public  affairs,  are  contracts  in  all  the  strictness  of  law,  and 
obligatory  on  the  state  and  the  whole  nation,  which  is  indis- 
pensably bound  to  discharge  those  debts.*     When  once  they 
have  been  contracted  by  lawful  authority,  the  right  of  the 
creditor  is  indefeasible.     Whether  the  money  borrowed  has 
been  turned  to  the  advantage  of  the  state,  or  squandered  in 
foolish  expenses,  is  no  concern  of  the  person  who  has  lent  it  : 
he  has  intrusted  the  nation  with  his  property,  and  the  nation 
is  bound  to  restore  it  to  him  again :  it  is  so  much  the  worse 
for  her,  if  she  has  committed  the  management  of  her  affairs 
to  improper  hands. 

This  maxim,  however,  has  its  bounds,  founded  even  on  the 
nature  of  the  thing.  The  sovereign  has  not,  in  general,  a 
power  to  render  the  state  or  body  corporate  liable  for  the 
debts  he  contracts,  unless  they  be  incurred  with  a  view  to  the 
national  advantage,  and  in  order  to  enable  him  to  provide  for 
all  occurrences.  If  he  is  absolute,  it  belongs  to  him  alone  to 
decide,  in  all  doubtful  cases,  what  the  welfare  and  safety  of 
the  state  require.  But,  if  he  should,  without  necessity,  con- 
tract debts  of  immense  magnitude  and  capable  of  ruining  the 
nation  for  ever,  there  could  not  then  exist  any  doubt  in  the 
case :  the  sovereign  has  evidently  acted  without  authority ; 
and  those  who  have  lent  him  their  money  have  imprudently 
[  228  ]  risked  it.  It  cannot  be  presumed  that  a  nation  has  ever  con- 
sented to  submit  to  utter  ruin  through  the  caprice  and  foolish 
prodigality  of  her  ruler. 

As  the  national  debts  can  only  be  paid  by  contributions 
and  taxes,  wherever  the  sovereign  has  not  been  intrusted  by 
the  nation  with  a  power  to  levy  taxes  and  contributions,  or, 
in  short,  to  raise  supplies  by  his  own  authority,  neither  has 
he  a  power  to  render»her  liable  for  what  he  borrows,  or  to  in- 
volve the  state  in  debt.  Thus,  the  king  of  England,  who  has 
the  right  of  making  peace  and  war,  has  not  that  of  contract- 

*  In  1596,  Philip  II.  declared  him-  could  no  longer  find  any  one  who  was 

self  a  bankrupt,  under  pretence  that  an  willing  to   lend  him    money ;    and  his 

unfair  advantage  had  been  taken  of  his  affairs    suffered    so    severely  in  conse- 

necossitios.      His  creditors    loudly  ex-  quence,  that  he  was  obliged  to  replace 

claimed   against  his   conduct,  and   as-  things  on  their  former  footing,  and  to 

serted  that  no  confidence  could  thence-  heal  the  wound  which  he  had  given  to 

forward  be  placed  either  in  his  word  or  the    public    faith.— Grotius,    Hist,    of 

his  treaties,  since    he  interposed    the  the    Disturbances   in  the  Netherlands, 

royal  authority  to  supersede  them.    He  book 
324 


OF  THE   FAITH   OF   TREATIES.  228 

ing  national  debts,  without  the  concurrence  of  parliament :  BOOK  n. 
because  he  cannot,  without  their  concurrence,  levy  any  money  CHAP-  xiy> 
on  his  people. 

The  case  is  not  the  same  with  the  donations  of  the  sove-  §  217.  Do- 
reign  as  with  his  debts.  When  a  sovereign  has  borrowed  nations  of 
without  necessity,  or  for  an  unwise  purpose,  the  creditor  has  th.e  sove" 
intrusted  the  state  with  his  property  ;  and  it  is  just  that  the rei) 
state  should  restore  it  to  him,  if  at  the  time  of  the  transac- 
tion, he  could  entertain  a  reasonable  presumption  that  it  was 
to  the  state  he  was  lending  it.  But,  when  the  sovereign  gives 
away  any  of  the  property  of  the  state, — a  part  of  the  national 
domain, — a  considerable  fief, — he  has  no  right  to  make  such 
grant  except  with  a  view  to  the  public  welfare,  as  a  reward 
for  services  rendered  to  the  state,  or  for  some  other  reason- 
able cause,  in  which  the  nation  is  concerned  :  if  he  has  made 
the  donation  without  reason,  and  without  a  lawful  cause,  he 
has  made  it  without  authority.  His  successor,  or  the  state, 
may  at  any  time  revoke  such  a  grant ;  nor  would  the  revoca- 
tion be  a  wrong  done  to  the  grantee,  since  it  does  not  deprive 
him  of  any  thing  which  he  could  justly  call  his  own.  What 
we  here  advance  holds  true  of  every  sovereign  whom  the  law 
does  not  expressly  invest  with  the  free  and  absolute  disposal 
of  the  national  property  :  so  dangerous  a  power  is  never  to 
be  founded  on  presumption. 

Immunities  and  privileges  conferred  by  the  mere  liberality 
of  the  sovereign,  are  a  kind  of  donations,  and  may  be  revoked 
in  the  same  manner,  if  they  prove  detrimental  to  the  state. 
But  a  sovereign  cannot  revoke  them  by  his  bare  authority, 
unless  he  be  absolute  :  and,  even  in  this  case,  he  ought  to  be 
cautious  and  moderate  in  the  exertion  of  his  power,  uniting 
an  equal  share  of  prudence  and  equity  on  the  occasion.  Im- 
munities granted  for  particular  reasons,  or  with  a  view  to 
some  return,  partake  of  the  nature  of  a  burdensome  contract, 
and  can  only  be  revoked  in  case  of  abuse,  or  when  they  be- 
come incompatible  with  the  safety  of  the  state.  And  if  they 
be  suppressed  on  this  latter  account,  an  indemnification  is 
due  to  those  who  enjoyed  them. 


CHAP.  XV.  [  229  ] 

OF   THE   FAITH   OF   TREATIES.  CHAP-  *v- 

THOUGH  we  have  sufficiently  established  (§§  163  and  164)  §  218-. 
the  indispensable  necessity  of  keeping  promises,  and  observ-  ^d'amo^g 
ing  treaties,  the  ^subject  is  of  such  importance,  that  we  cannot  nati0ns. 
forbear  considering  it  here  in  a  more  general  view,  as  inter- 
esting, not  only  to  contracting  parties,  but  likewise  to  all 
nations,  and  to  the  universal  society  of  mankind. 

2C  325 


229  OF  THE  FAITH   OF  TREATIES. 

BOOK  H.  Every  thing  which  the  public  safety  renders  inviolable  is 
CHAP,  xv.  sacre(j  in  society.  Thus,  the  person  of  the  sovereign  is  sacred, 
because  the  safety  of  the  state  requires  that  he  should  be  in 
perfect  security,  and  above  the  reach  of  violence :  thus  the 
people  of  Rome  declared  the  persons  of  their  tribunes  sacred, 
— considering  it  as  essential  to  their  own  safety  that  their 
defenders  should  be  screened  from  all  violence,  and  even  ex- 
empt from  fear.  Every  thing,  therefore,  which  the  common 
safety  of  mankind  and  the  peace  and  security  of  human  so- 
ciety require  to  be  held  inviolable,  is  a  thing  that  should  be 
sacred  among  nations. 

§  219.  Trea-  Who  can  doubt  that  treaties  are  in  the  number  of  those 
things  that  are  to  be  held  sacred  by  nations  ?  By  treaties 
en  *^e  m<>st  important  affairs  are  determined ;  by  them  the  pre- 
tions.  tensions  of  sovereigns  are  regulated ;  on  them  nations  are  to 
depend  for  the  acknowledgment  of  their  rights,  and  the  secu- 
rity of  their  dearest  interests.  Between  bodies  politic, — be- 
tween sovereigns  who  acknowledge  no  superior  on  earth, — 
treaties  are  the  only  means  of  adjusting  their  various  pre- 
tensions,— of  establishing  fixed  rules  of  conduct, — of  ascer- 
taining what  they  are  entitled  to  expect,  and  what  they  have 
to  depend  on.  But  treaties  are  no  better  than  empty  words, 
if  nations  do  not  consider  them  as  respectable  engagements, 
— as  rules  which  are  to  be  inviolably  observed  by  sovereigns, 
and  held  sacred  throughout  the  whole  earth. 

§  220.   The      The  faith  of  treaties, — that  firm  and  sincere  resolution, — 

faith  of  trea- that  invariable  constancy  in  fulfilling  our  engagements, — of 

ties  is  sa-     which  we  make  profession  in  a  treaty,  is  therefore  to  be  held 

sacred  and  inviolable  between  the  nations  of  the  earth,  whose 

safety  and  repose  it  secures :  and,  if  mankind  be  not  wilfully 

deficient  in  their  duty  to  themselves,  infamy  must  ever  be  the 

portion  of  him  who  violates  his  faith. 

g  221.   He       He  who  violates  his  treaties,  violates  at  the  same  time  the 
who  violates  law  of  nations  ;  for,  he  disregards  the  faith  of  treaties, — that 
vioiataHhe  ^^  w^c^  *^e  ^aw  °^  nati°ns  declares  sacred ;  and,  so  far 
law  of  na-    as  depends  on  him,  he  renders  it  vain  and  ineffectual.  Doubly 
tions.          guilty,  he  does  an  injury  to  his  ally,  he  does  an  injury  to  all 
nations,  and  inflicts  a  wound  on  the  great  society  of  mankind. 
[  230  ]  "  On  the  observance  and  execution  of  treaties,"  said  a  re- 
spectable sovereign,  "  depends  all  the  security  which  princes 
and  states  have  with  respect  to  each  other :  and  no  depend- 
ence could  henceforward  be  placed  in  future  conventions  if 
the  existing  ones  were  not  to  be  observed."* 

g  222.  Right     As  all  nations  are  interested  in  maintaining  the  faith  of 

of  nations    treaties,  and  causing  it  to  be  everywhere  considered  as  sacred 

against  him  an(j  inviolable,  so  likewise  they  are  justifiable  in  forming  a 

confederacy  for  the  purpose  of  repressing  him  who  testifies  a 

*  Resolution    of  the  States-General,    to  the  Memorial  of  the  Marquis  do  St. 
of  the  15th  of  March,  1726,  in  answer    Philip,  Ambassador  of  Spain. 


OF  THE   FAITH    OF   TREATIES. 

disregard  for  it, — who  openly  sports  with  it, — who  violates    BOOK  n. 
and  tramples  it  under  foot.     Such  a  man  is  a  public  enemy  . CHAP-  *Y- , 
who  saps  the  foundations  of  the  peace  and  common  safety  of  s»rds  the 
nations.     But  we  should  be  careful  not  to  extend  this  maxim  [fel*h  of  teea" 
to  the  prejudice  of  that  liberty  and  independence  to  which 
every  nation  has  a  claim.     When  a  sovereign   breaks  his 
treaties,  or  refuses  to  fulfil  them,  this  does  not  immediately 
imply  that  he  considers  them  as  empty  names,  and  that  he 
disregards  the  faith  of  treaties :  he  may  have  good  reasons 
for  thinking  himself  liberated  from  his  engagements ;    and 
other  sovereigns  have  not  a  right  to  judge  him.     It  is  the 
sovereign  who  violates  his  engagements  on  pretences  that  are 
evidently  frivolous,  or  who  does  not  even  think  it  worth  his 
while  to  allege  any  pretence  whatever,  to  give  a  colourable 
gloss  to  his  conduct,  and  cast  a  veil  over  his  want  of  faith, — 
it  is  such  a  sovereign  who  deserves  to  be  treated  as  an  enemy 
to  the  human  race. 

In  treating  of  religion,  in  the  first  book  of  this  work,  we  I  223-  Tk* 
eould  not  avoid  giving  several  instances  of  the  enormous lflw  of  .na~ 
abuses  which  the  popes  formerly  made  of  their  authority.  la^d  ™  tha 
There  was  one  in  particular,  which  was  equally  injurious  to  all  popes, 
states,  and  subversive  of  the  law  of  nations.  Several  popes 
have  undertaken  to  break  the  treaties  of  sovereigns ;  they 
carried  their  daring  audacity  so  far  as  to  release  a  contract- 
ing power  from  his  engagements,  and  to  absolve  him  from 
the  oaths  by  which  he  had  confirmed  them.  Cesarini,  legate 
of  pope  Eugenius  the  Fourth,  wishing  to  break  the  treaty 
which  Uladislaus,  king  of  Poland  and  Hungary,  had  con- 
cluded with  the  sultan  Amurath,  pronounced,  in  the  pope's 
name,  the  king's  absolution  from  his  oaths.*  In  those  times 
of  ignorance,  people  thought  themselves  really  bound  by  no- 
thing but  their  oaths,  and  they  attributed  to  the  pope  the 
power  of  absolving  them  from  oaths  of  every  kind.  Uladislaus 
renewed  hostilities  against  the  Turks :  but  that  prince,  in 
other  respects  worthy  of  a  better  fate,  paid  dearly  for  perfidy, 
or  rather  for  his  superstitious  weakness :  he  perished,  with 
his  army,  near  Varna : — a  loss  which  was  fatal  to  Christen- 
dom, and  brought  on  her  by  her  spiritual  head.  The  follow- 
ing epitaph  was  written  on  Uladislaus : 

Romulidas  Cannae,  ego  Varnam  clade  notavi. 

Discite,  mortales,  non  temerare  fidem. 
Me  nisi  pontifices  jussissent  rumpere  foedus, 

Non  ferret  Scythicum  Pannonis  ora  jugum. 

Pope  John  XII.  declared  null  the  oath  which  the  emperor  [  231  ] 
Louis  of  Bavaria,  and  his  competitor  Frederic  of  Austria,  had 
mutually  taken  when  the  emperor  set  the  latter  at  liberty. 
Philip,  duke  of  Burgundy,  abandoning  the  alliance  of  the 

*  History  of  Poland,  by  the  Chevalier    Dlugoss,  Neugobauer,  Sarnicki,  Herburt, 
de   Solignac,  vol.  iv.  112.    He  quotes    De  Fulstin,  Ac. 

327 


231  OF   THE   FAITH   OF  TREATIES. 

BOOK  ii.  English,  procured  from  the  pope  and  the  council  of  Basil  an 
CHAP,  xv.  ablution  fr0m  his  oath.  And  at  a  time  when  the  revival 
of  letters,  and  the  establishment  of  the  Reformation  should 
have  rendered  the  popes  more  circumspect,  the  legate  Caraffa, 
in  order  to  induce  Henry  II.  of  France  to  a  renewal  of  hos- 
tilities, had  the  audacity  to  absolve  him,  in  1556,  from  the 
oath  he  had  made  to  observe  the  truce  of  Vaucelles.*  The 
famous  peace  of  Westphalia  displeasing  the  pope  on  many 
accounts,  he  did  not  confine  himself  to  protesting  against  the 
articles  of  a  treaty  in  which  all  Europe  was  interested :  he 
published  a  bull,  in  which,  from  his  own  certain  knowledge, 
and  full  ecclesiastical  power,  he  declared  several  articles  of 
the  treaty  null,  vain,  invalid,  iniquitous,  unjust,  condemned, 
reprobated,  frivolous,  void  of  force  and  effect ;  and  that  no- 
body was  bound  to  observe  them  or  any  of  them,  though  they 
were  confirmed  by  oath. — Nor  was  this  all : — his  holiness,  as- 
suming the  tone  of  an  absolute  master,  proceeds  thus — And, 
nevertheless,  for  the  greater  precaution,  and  as  much  as  need 
be,  from  the  same  motions,  knowledge,  deliberations,  and  ple- 
nitude of  power,  we  condemn,  reprobate,  break,  annul,  and 
deprive  of  all  force  and  effect,  the  said  articles,  and  all  the 
other  things  prejudicial  to  the  above,  ^-c.f  Who  does  not  see 
that  these  daring  acts  of  the  popes,  which  were  formerly  very 
frequent,  were  violations  of  the  law  of  nations,  and  directly 
tended  to  destroy  all  the  bands  that  could  unite  mankind, 
and  to  sap  the  foundations  of  their  tranquillity,  or  to  render 
the  pope  sole  arbiter  of  their  affairs  ? 

\  224.   This      But  who  can  restrain  his  indignation  at  seeing  this  strange 
abuse  au-     abuse  authorized  by  princes  themselves  ?     In  the  treaty  con- 
^kices1  by  eluded  a*  Vincennes,  between  Charles  V.  king  of  France,  and 
Robert  Stuart,  king  of  Scotland,  in  1371,  it  was  agreed  that 
the  pope  should  absolve  the  Scots  from  all  the  oaths  they  had 
taken  in  swearing  to  a  truce  with  the  English,  and  that  he 
[  232  ]  should  promise  never  to  absolve  the  French  or  Scots  from  the 
oaths  they  were  about  to  make  in  swearing  to  the  new  treaty.^ 
\  225.   Use      The  custom  generally  received  in  former  times,  of  swearing 
of  an  oath    ^0  ^e  observance  of  treaties,  had  furnished  the  popes  with  a 
''    pretext  for  claiming  the  power  of  breaking  them,  by  absolv- 
ing the  contracting  parties  from  their  oaths.     But,  in  the 
cons°titute0t   Present  ^a7»  even  children  know  that  an  oath  does  not  con- 
tte  obiiga-   st^ute  the  obligation  to  keep  a  promise  or  a  treaty  :  it  only 
tion.  (128)    gives  an  additional  strength  to  that  obligation,  by  calling  God 

*  On  these  facts,  see  the  French  and  out  a   previous    declaration  of   hostili- 

Gcrman    historians. — "  Thus   war    was  ties." — De  Thou,  lib.  xvii. 

determined  on  in  favour  of  the  pope :  f  History   of    the    Treaty   of  West- 

and  after  cardinal  Caraffa,  by  virtue  of  phalia,  by  Father  Bougeant,  in  12mo. 

the  powers  vested  in  him  by  his  holi-  vol.  vi.  p.  413. 

ness,  had  absolved   the  king  from  the  {  Choisy's  History  of  Charles  V.  p. 

oaths  he  had  taken  in   ratification   of  282. 

the   truce,  he   even    permitted   him  to  (128)  Paley,  in   his   Moral    Philoso- 

attack  the   emperor  and  his  son  with-  phy,  agrees  in  this  view  of  moral  obli- 
328 


OF   THE    FAITH   OF   TREATIES. 

to  bear  witness.  A  man  of  sense,  a  man  of  honour,  does  not  BOOK  n. 
think  himself  less  bound  by  his  word  alone,  by  his  faith  once  -— Ap-  *T' . 
pledged,  than  if  he  had  added  the  sanction  of  an  oath.  Cicero  . 
would  not  have  us  to  make  much  difference  between  a  per- 
jurer and  a  liar.  "  The  habit  of  lying  (says  that  great  man) 
paves  the  way  to  perjury.  Whoever  can  be  prevailed  on  to 
utter  a  falsehood,  may  be  easily  won  over  to  commit  perjury : 
for  the  man  who  has  once  deviated  from  the  line  of  truth, 
generally  feels  as  little  scruple  in  consenting  to  a  perjury  as 
to  a  lie.  For,  what  influence  can  the  invocation  of  the  gods 
have  on  the  mind  of  him  who  is  deaf  to  the  voice  of  con- 
science ?  The  same  punishment,  therefore,  which  heaven 
has  ordained  for  the  perjurer,  awaits  also  the  liar :  for  it  is 
not  on  account  of  the  formula  of  words  in  which  the  oath  is 
couched,  but  of  the  perfidy  and  villany  displayed  by  the  per- 
jurer in  plotting  harm  against  his  neighbour,  that  the  anger 
and  indignation  of  the  gods  is  roused."* 

The  oath  does  not  then  produce  a  new  obligation :  it  only 
gives  additional  force  to  the  obligation  imposed  by  the  treaty, 
and  in  every  thing  shares  the  same  fate  with  it.  Where  the 
treaty  is  of  its  own  nature  valid  and  obligatory,  the  oath  (in 
itself  a  supererogatory  obligation)  is  so  too :  but,  where  the 
treaty  is  void,  the  oath  is  void  likewise. 

The  oath  is  a  personal  act :  it  can  therefore  only  regard  ?  226.  it 
the  person  of  him  who  swears,  whether  he  swears  himself,  or  does  not 
deputes  another  to  swear  in  his  name.     However,  as  this  act  nature* of  ° 
does  not  produce  a  new  obligation,  it  makes  no  change  in  the  obligations, 
nature  of  a  treaty.     Thus,  an  alliance  confirmed  by  oath  is 
so  confirmed  only  with  respect  to  him  who  has  contracted  it : 
but  if  it  be  a  real  alliance,  it  survives  him,  and  passes  to  his 
successors  as  an  alliance  not  confirmed  by  oath. 

For  the  same  reason,  since  the  oath  can  impose  no  other  1 227.  it 
obligation  than  that  which  results  from  the  treaty  itself,  it  eiv.es  no  Pre- 
gives  no  pre-eminence  to  one  treaty,  to  the  prejudice  of  those  ^ 
that  are  not  sworn  to.     And  as,  in  case  of  two  treaties  clash-  above 
ing  with  each  other,  the  more  ancient  ally  is  to  be  preferred  another. 
(§  167) ;  the  same  rule  should  be  observed,  even  though  the 
more  recent  treaty  has  been  confirmed  by  an  oath.     In  the  [  232  ] 
same  manner,  since  it  is  not  allowable  to  engage  in  treaties 

gation.     It    is   the   modern    policy  to  consuevit.       Quis     enim     deprecatione 

restrain  prospective  oaths,  or  rather  pro-  deorum,  non  conscientiae  fide  commo- 

mises,  and  all  extra-judicial  oaths  not  vetur?     Propterea,  quse  poena  ab  diis 

essential    for   eliciting    evidence    upon  immortalibus  perjuro,  haec  eadem  men- 

past  events.— C.  daci  constituta  est.     Non  enim  ex  pac- 

*  At  quid  interest  inter  perjurum  et  tione    verborum    quibus    jusjurandum 

mendacem?     Qui  mentiri  solet,  pejerare  comprehenditur,    sed     ex    perfidia    et 

consuevit.     Quern    ego,   ut    mentiatur,  malitia    per  quam    insidise    tenduntur 

inducere   possum,   ut  pejeret,   exorare  alicui,  dii  immortales  hominibus  irasci 

facile  potero :  nam  qui  semel  a  veritate  et  succensere  consuSrunt.     Cicer.  Or»t. 

deflexit,  hie   non   majori  religione   ad  pro  Q.  Roscio,  comoedo. 
perjurium  quam  ad  mendacium  perduci 

42  2c2  329 


233  OF   THE   FAITH   OF   TREATIES. 

BOOK  n.    inconsistent  with  existing  ones  (§  165),  the  circumstance  of 
CHAP,  xv.  an  Oa^.j1  wjjj  no<.  justify  such  treaties,  nor  give  them  sufficient 
validity  to  supersede  those  which  are  incompatible  with  them : 
— if  it  had  such  an  effect,  this  would  be  a  convenient  mode 
for  princes  to  rid  themselves  of  their  engagements. 
§  228.    It         Thus  also  an  oath  cannot  give  validity  to  a  treaty  that  is 
cannot  give  Of  its  own  nature  invalid, — justify  a  treaty  which  is  in  itself 
force  to  a     ujyug^ — or  impose  any  obligation  to  fulfil  a  treaty,  however 


lawfully  concluded,  when  an  occasion  occurs  in  which  the 
observance  of  it  would  be  unlawful, — as  for  instance,  if  the 
ally  to  whom  succours  have  been  promised  undertakes  a  war 
that  is  manifestly  unjust.  In  short,  every  treaty  made  for  a 
dishonourable  purpose  (§  161),  every  treaty  prejudicial  to  the 
state  (§  160),  or  contrary  to  her  fundamental  laws  (Book  I. 
§  265),  being  in  its  own  nature  void, — the  oath  that  may  have 
been  added  to  such  a  treaty  is  void  likewise,  and  falls  to  the 
ground  together  with  the  covenant  which  it  was  intended  to 
confirm. 

g  229.   As-       The  asseverations  used  in  entering  into  engagements  are 
severations.  forms  of  expression  intended  to  give  the  greater  force  to  pro- 
mises.    Thus,  kings  promise  in  the  most  sacred  manner,  with 
good  faith,  solemnly,   irrevocably,   and   engage   their   royal 
word,  &c.     A  man  of  honour  thinks  himself  sufficiently  bound 
by  his  word  alone :  yet  these  asseverations  are  not  useless,  in- 
asmuch as  they  tend  to  prove  that  the  contracting  parties 
form  their  engagements  deliberately,  and  with  a  knowledge 
of  what  they  are  about.     Hence,  consequently  the  violation 
of  such  engagements  become  the  more  disgraceful.     With 
mankind,  whose  faith  is  so  uncertain,  every  circumstance  is 
to  be  turned  to  advantage :  and  since  the  sense  of  shame  ope- 
rates more  powerfully  on  their  minds  than  the  sentiment  of 
duty,  it  would  be  imprudent  to  neglect  this  method. 
\  230.   The      After  what  we  have  said  above  (§  162),  it  were  unnecessary 
faith  of       to  undertake  in  this  place  to  prove  that  the  faith  of  treaties 
noTdTend  *  ^as  no  rela^on  *°  *^e  difference  of  religion,  and  cannot  in  any 
on  the  dif-    manner  depend  upon  it.    The  monstrous  maxim,  that  no  faith 
ference  of    is  to  be  kept  with  heretics,  might  formerly  raise  its  head  amidst 
religion.       the  madness  of  party  and  the  fury  of  superstition  :  but  it  is 

at  present  generally  detested. 

$  231.    Pre-     If  the  security  of  him  who  stipulates  for  anything  in  his 
cautions  to   own  favour  prompts  him  to  require  precision,  fulness,  and 
wording       ^e  greatest   clearness  in  the  expressions, — good  faith  de- 
treaties,       mands,  on  the  other  hand,  that  each  party  should  express  his 
promises  clearly,  and  without  the  least  ambiguity.     The  faith 
of  treaties  is  basely  prostituted  by  studying  to  couch  them  in 
vague  or  equivocal  terms,  to  introduce  ambiguous  expressions, 
to  reserve  subjects  of  dispute,  to  overreach  those  with  whom 
we  treat,  and  outdo  them  in  cunning  and  duplicity.     Let  the 
man  who  excels  in  these  arts  boast  of  his  happy  talents,  and 
esteem  himself  a  keen  negotiator ;  but  reason  and  the  sacred 

330 


OF  THE   FAITH   OF   TREATIES.  234 


law  of  nature  will  class  him  as  far  beneath  a  vulgar  cheat  as    BOOK  n. 
the  majesty  of  kings  is  exalted  above  private  persons.     True  CHAP'  **' 
diplomatic  skill  consists  in  guarding  against  imposition,  not 
in  practising  it. 

Subterfuges  in  a  treaty  are  not  less  contrary  to  good  faith.  §  232-  Sub- 
His  catholic  Majesty,  Ferdinand,  having  concluded  a  treaty  ^^  m 
with  the  archduke  his  son-in-law,  thought  he  could  evade  it 
by  privately  protesting  against  the  treaty :  a  puerile  finesse  ! 
which,  without  giving  any  right  to  that  prince,  only  exposed 
his  weakness  and  duplicity. 

The  rules  that  establish  a  lawful  interpretation  of  treaties  ?  233-   Al» 
are  sufficiently  important  to  be  made  the  subject  of  a  distinct  jj^6^^ 
chapter.     For  the  present,  let  us  simply  observe  that  an  evi-  pretation  " 
dently  false  interpretation  is  the  grossest  imaginable  violation  inconsistent 
of  the  faith  of  treaties.    He  that  resorts  to  such  an  expedient,  with  the 
either  impudently  sports  with  that  sacred  faith,  or  sufficiently  faith.of 
evinces  his  inward  conviction  of  the  degree  of  moral  turpitude 
annexed  to  the  violation  of  it :  he  wishes  to  act  a  dishonest 
part,  and  yet  preserve  the  character  of  an  honest  man :  he 
is  a  puritanical  impostor,  who  aggravates  his  crime  by  the 
addition  of  a  detestable  hypocrisy.     Grotius  quotes  several 
instances  of  evidently  false  interpretations  put  upon  treaties  :* 
the  Plateans,  having  promised  the  Thebans  to  restore  their 
prisoners,  restored  them  after  they  had  put  them  to  death. 
Pericles,  having  promised  to  spare  the  lives  of  such  of  the 
enemy  as  laid  down  their  arms,f  ordered  all  those  to  be  killed 
who  had  iron  clasps  to  their  cloaks.    A  Roman  general,  J  hav- 
ing agreed  with  Antiochus  to  restore  him  half  of  his  fleet, 
caused  6ach  of  the  ships  to  be  sawed  in  two.     All  these  in- 
terpretations are  as  fraudulent  as  that  of  Rhadamistus,  who, 
according  to  Tacitus's  account,||  having  sworn  to  Mithridates 
that  he  would  not  employ  either  poison  or  the  steel  against 
him,  caused  him  to  be  smothered  under  a  heap  of  clothes. 

Our  faith  may  be  tacitly  pledged,  as  well  as  expressly  :  it  §  234.  Faith 
is  sufficient  that  it  be  pledged,  in  order  to  become  obligatory :  ^titty 
the  manner  can  make  no  difference  in  the  case.     The  tacit pledged- 
pledging  of  faith  is  founded  on  a  tacit  consent ;  and  a  tacit 
consent  is  that  which,  is,  by  fair  deduction,  inferred  from  our 
actions.     Thus,  as  Grotius  observes, §  whatever  is  included  in 
the  nature  of  certain  acts  which  are  agreed  upon,  is  tacitly 
comprehended  in  the  agreement :  or,  in  other  words,  every 
thing  which  is  indispensably  necessary  to  give  effect  to  the 
articles  agreed  on,  is  tacitly  granted.     If,  for  instance,  a  pro- 
mise is  made  to  a  hostile  army  who  have  advanced  far  into 

*  De  Jure  Belli  et  Pacis,  lib.  ii.  cap.  J  Q.  Fabius  Labeo,  according  to  Va- 

xvi.  \  5.  lerius  Maximus ;  Livy  makes  no  men- 

f  Literally,  "  laid  down  their  iron  or  tion  of  the  transaction. 

tteel :"  hence  the  perfidious  quibble  on  ||  Annal.  lib.  xii. 

the  word  iron,  which  cannot  be  so  well  §  Lib.  iii.  cap.  xxiv.  g  1. 
rendered  in  English. 


235  OF    SECURITIES    GIVEN    FOR 

BOOK  ii.  the  country,  that  they  shall  be  allowed  to  return  home  in 
CHAP,  xv.  safety?  ft  is  manifest  that  they  cannot  be  refused  provisions ; 
for  they  cannot  return  without  them.  In  the  same  manner, 
in  demanding  or  accepting  an  interview,  full  security  is 
tacitly  promised.  Livy  justly  says,  that  the  Gallo-Greeks 
violated  the  law  of  nations  in  attacking  the  consul  Manlius 
at  the  time  when  he  was  repairing  to  the  place  of  interview 
to  which  they  had  invited  him.*  The  emperor  Valerian, 
having  been  defeated  by  Sapor,  king  of  Persia,  sent  to  him 
to  sue  for  peace.  Sapor  declared  that  he  wished  to  treat 
with  the  emperor  in  person ;  and  Valerian,  having  consented 
to  the  interview  without  any  suspicion  of  fraud,  was  carried 
off  by  the  perfidious  enemy,  who  kept  him  a  prisoner  till 
his  death,  and  treated  him  with  the  most  brutal  cruel ty.f 

Grotius,  in  treating  of  tacit  conventions,  speaks  of  those  in 
which  the  parties  pledge  their  faith  by  mute  signs.!  But  we 
ought  not  to  confound  these  two  kinds  of  tacit  conventions  : 
for  that  consent  which  is  sufficiently  notified  by  a  sign,  is  an 
express  consent,  as  clearly  as  if  it  had  been  signified  by  the 
voice.  Words  themselves  are  but  signs  established  by  cus- 
tom :  and  there  are  mute  signs  which  established  custom 
renders  as  clear  and  as  express  as  words.  Thus,  at  the  present 
day,  by  displaying  a  white  flag,  a  parley  is  demanded,  as  ex- 
pressly as  it  could  be  done  by  the  use  of  speech.  Security  is 
tacitly  promised  to  the  enemy  who  advances  upon  this  invita- 
tion. 


CHAP.  XVI. 

CHAP.  XYI.        OP  SECURITIES  GIVEN  FOR  THE  OBSERVANCE  OF  TREATIES. 

g  235.  Gua-  CONVINCED  by  unhappy  experience,  that  the  faith  of 
ranty.  treaties,  sacred  and  inviolable  as  it  ought  to  be,  does  not 
always  afford  a  sufficient  assurance  that  they  shall  be  punc- 
tually observed, — mankind  have  sought  for  securities  against 
perfidy, — for  methods,  whose  efficacy  should  not  depend  on 
the  good  faith  of  the  contracting  parties.  A  guaranty  is  one 
of  these  means.  When  those  who  make  a  treaty  of  peace, 
or  any  other  treaty,  are  not  perfectly  easy  with  respect  to 
its  observance,  they  require  the  guaranty  of  a  powerful  sove- 
reign. The  guarantee  promises  to  maintain  the  conditions 
of  the  treaty,  and  to  cause  it  to  be  observed.  As  he  may 
find  himself  obliged  to  make  use  of  force  against  the  party 
who  attempts  to  violate  his  promises,  it  is  an  engagement  that 

*  Livy,  lib.  xxxviii.  cap.  xxv. 

f  The  Life  of  Valerian  in  Crevior's  History  of  the  Emperors. 

j  Lib.  iii.  cap.  xxiv.  £  5. 

882 


THE   OBSERVANCE   OF  TREATIES.  235 

no  sovereign  ought  to  enter  into  lightly,  and  without  good    BOOK  n. 
reason.     Princes  indeed  seldom  enter  into  it  unless  when  they  CBAP-  *YI-. 
have  an  indirect  interest  in  the  observance  of  the  treaty,  or 
are  induced  by  particular  relations  of  friendship.     The  gua-  [  236  ] 
ranty  may  be  promised  equally  to  all  the  contracting  parties, 
to  some  of  them,  or  even  to  one  alone :  but  it  is  commonly 
promised  to  all  in  general.     It  may  also  happen,  when  several 
sovereigns  enter  into  a  common  alliance,  that  they  all  reci- 
procally pledge  themselves  to  each  other  as  guarantees  for  its 
observance.     The  guaranty  is  a  kind  of  treaty,  by  which  as- 
sistance and  succours  are  promised  to  any  one,  in  case  he  has 
need  of  them,  in  order  to  compel  a  faithless  ally  to  fulfil  his 
engagements. 

Guaranty  being  given  in  favour  of  the  contracting  powers,  ?  236.   it 
or  of  one  of  them,  it  does  not  authorize  the  guarantee  to  in-  siyes  the 
terfere  in  the  execution  of  the  treaty,  or  to  enforce  the  obser-  ^ar™  ^to 
vance  of  it,  unasked,  and  of  his  own  accord.     If,  by  mutual  interfere  un- 
consent,  the  parties  think  proper  to  deviate  from  the  tenor  asked  in  the 
of  the  treaty,  to  alter  some  of  the  articles,  or  to  cancel  it  alto-  execution  of 
gether, — or  if  one  party  be  willing  to  favour  the  other  by  a a  treaty* 
relaxation  of  any  claim, — they  have  a  right  to  do  this,  and 
the  guarantee  cannot  oppose  it.     Simply  bound  by  his  pro- 
mise to  support  the  party  who  should  have  reason  to  complain 
of  the  infraction  of  the  treaty,  he  has  acquired  no  rights  for 
himself.     The  treaty  was  not  made  for  him ;  for,  had  that 
been  the  case,  he  would  have  been  concerned,  not  merely  as 
a  guarantee,  but  as  a  principal  in  the  contract.     This  obser- 
vation is  of  great  importance :  for  care  should  be  taken,  lest, 
under  colour  of  being  a  guarantee,  a  powerful  sovereign  should 
render  himself  the  arbiter  of  the  affairs  of  his  neighbours, 
and  pretend  to  give  them  law. 

But  it  is  true,  that,  if  the  parties  make  any  change  in  the 
articles  of  the  treaty  without  the  consent  and  concurrence 
of  the  guarantee,  the  latter  is  no  longer  bound  to  adhere  to 
the  guaranty ;  for  the  treaty  thus  changed  is  no  longer  that 
which  he  guarantied. (129) 

As  no  nation  is  obliged  to  do  any  thing  for  another  nation,  g  237.  Na- 
which  that  other  is  herself  capable  of  doing,  it  naturally  fol- ture  of  the 
lows  that  the  guarantee  is  not  bound  to  give  his  assistance 
except  where  the  party  to  whom  he  has  granted  his  guaranty 
is  of  himself  unable  to  obtain  justice. 

If  there  arises  any  dispute  between  the  contracting  parties 
respecting  the  sense  of  any  article  of  the  treaty,  the  guarantee 
is  not  immediately  obliged  to  assist  him  in  favour  of  whom 
he  has  given  his  guaranty.  As  he  cannot  engage  to  support 
injustice,  he  is  to  examine,  and  to  search  for  the  true  sense 

(129)  This  principle  of  the  law   of    viduals.    5  Barn.  &  Ores.  269;  2  Dowl. 
nations  in  this  respect  precisely  applies     &  R.  22 ;  5  Bing.  485. — C. 
to  guaranties   given  by  private  indi- 

333 


236  OF   SECURITIES   GIVEN  FOR 

BOOK  n.    of  the  treaty,  to  weigh  the  pretensions  of  him  -who  claims  his 
CHAP,  xvi.  guaranty  •  and?  if  he  finds  them  ill  founded,  he  may  refuse  to 

support  them,  without  failing  in  his  engagements. 
§  238.    The      It  is  no  less  evident  that  the  guaranty  cannot  impair  the 
carmo'Thn    "S^8  of  any  one  who  is  not  a  party  to  the  treaty.    If,  there- 
pair  the       f°re>  it  happens  that  the  guarantied  treaty  proves  derogatory 
rights  of  a   to  the  rights  of  those  who  are  not  concerned  in  it, — the  treaty 
third  party,  being  unjust  in  this  point,  the  guarantee  is  in  no  wise  bound 
to  procure  the  performance  of  it ;  for,  as  we  have  shown  above, 
he  can  never  have  incurred  an  obligation  to  support  injustice. 
[  237  ]  This  was  the  reason  alleged  by  France,  when,  notwithstand- 
ing her  having  guarantied  the  famous  pragmatic  sanction  of 
Charles  VI.,  she  declared  for  the  house  of  Bavaria,  in  oppo- 
sition to  the  heiress  of  that  emperor.     This  reason  is  incon- 
testably  a  good  one,  in  the  general  view  of  it :  and  the  only 
question  to  be  decided  at  that  time  was,  whether  the  court 
of  France  made  a  just  application  of  it. 

Non  nostrum  inter  vos  tantas  componere  lites. 

I  shall  observe  on  this  occasion,  that,  according  to  common 
usage,  the  term  guaranty  is  often  taken  in  a  sense  somewhat 
different  from  that  we  have  given  to  it.  For  instance,  most 
of  the  powers  of  Europe  guarantied  the  act  by  which  Charles 
VI.  had  regulated  the  succession  to  his  dominions ; — sove- 
reigns sometimes  reciprocally  guaranty  their  respective  states. 
But  we  should  rather  denominate  those  transactions  treaties 
of  alliance,  for  the  purpose,  in  the  former  case,  of  maintain- 
ing that  rule  of  succession, — and,  in  the  latter,  of  supporting 
the  possession  of  those  states. 

§  239.    Du-      The  guaranty  naturally  subsists  as  long  as  the  treaty  that 
ration  of  the  is  the  object  of  it;  and,  in  case  of  doubt,  this  ought  always 
guaranty.     ^Q  ^  presume<j5  since  it  is  required,  and  given,  for  the  secu- 
rity of  the  treaty.     But  there  is  no  reason  which  can  natu- 
rally prevent  its  limitation  to  a  certain  period, — to  the  lives 
of  the  contracting  powers,  to  that  of  the  guarantee,  &c.     In 
a  word,  whatever  we  have  said  of  treaties  in  general  is  equally 
applicable  to  a  treaty  of  guaranty. 

§  240.  Trea-  When  there  is  question  of  things  which  another  may  do  or 
£>ive  as  we^  as  ^e  w^°  Promises?  as5  f°r  instance,  the  payment 
of  a  sum  of  money,  it  is  safer  to  demand  a  security  than  a 
guaranty :  for  the  surety  is  bound  to  make  good  the  promise 
in  default  of  the  principal, — whereas  the  guarantee  is  only 
obliged  to  use  his  best  endeavours  to  obtain  a  performance  of 
the  promise  from  him  who  has  made  it. 
?  241.  A  nation  may  put  some  of  her  possessions  into  the  hands 

Pawns,  se-   Of  another,  for  the  security  of  her  promises,  debts,  or  engage- 
'm    ments-     If  sne  thus  deposits  movable  property,  she  gives 
pledges.     Poland  formerly  pledged  a  crown  and  other  jewels 
to  the  sovereigns  of  Prussia.     But  sometimes  towns  and  pro- 
vinces are  given  in  pawn.     If  they  are  only  pledged  by  a 


THE   OBSERVANCE   OF   TREATIES.  237 

deed  which  assigns  them  as  security  for  a  debt,  they  serve  as    BOOK  n. 
a  mortgage :  if  they  are  actually  put  into  the  hands  of  the  ere-  CHAP-  XTI- 
ditor,  or  of  him  with  whom  the  affair  has  been  transacted,  he 
holds  them  as  pledges :  and,  if  the  revenues  are  ceded  to  him 
as  an  equivalent  for  the  interest  of  the  debt,  the  transaction 
is  called  a  compact  of  antichresis. 

The  right  which  the  possession  of  a  town  or  province  con-  §  242.   A 
fers  upon  him  who  holds  it  in  pledge,  extends  no  further  than  nation's 
to  secure  the  payment  of  what  is  due  to  him,  or  the  perform-  ™j^  °™r 
ance  of  the  promise  that  has  been  made  to  him.     He  may  ^oids  M** 
therefore  retain  the  town  or  the  province  in  his  hands,  till  he  pledge, 
is  satisfied :  but  he  has  no  right  to  make  any  change  in  it ; 
for  that  town,  or  that  country,  does  not  belong  to  him  as  pro-  [  238  ] 
prietor.     He  cannot  even  interfere  in  the  government  of  it, 
beyond  what  is  required  for  his  own  security,  unless  the 
empire,  or  the  exercise  of  sovereignty,  has  been  expressly 
made  over  to  him.     This  last  point  is  not  naturally  to  be 
presumed,  since  it  is  sufficient  for  the  security  of  the  mort- 
gagee, that  the  country  is  put  into  his  hands  and  under  his 
power.     Further,  he  is  obliged,  like  every  other  person  who 
has  received  a  pledge,  to  preserve  the  country  he  holds  as  a 
security,  and,  as  far  as  in  his  power,  to  prevent  its  suffering 
any  damage  or  dilapidation :  he  is  responsible  for  it ;  and  if 
the  country  is  ruined  through  his  fault,  he  is  bound  to  in- 
demnify the  state  that  intrusted  him  with  the  possession  of 
it.     If  the  sovereignty  is  deposited  in  his  hands  together 
with  the  country  itself,  he  ought  to  govern  it  according  to 
its  constitution,  and  precisely  in  the  same  manner  as  the 
sovereign  of  the  country  was  obliged  to  govern  it ;  for  the 
latter  could  only  pledge  his  lawful  right. 

As  soon  as  the  debt  is  paid,  or  the  treaty  is  fulfilled,  the  ?  243.  How 
term  of  the  security  expires,  and  he  who  holds  a  town  or  asheis 
province  by  this  title  is  bound  to  restore  it  faithfully,  in 
same  state  in  which  he  received  it,  so  far  as  this  depends 
on  him. 

But  to  those  who  have  no  law  but  their  avarice,  or  their 
ambition — who,  like  Achilles,  place  all  their  right  in  the  point 
of  their  sword* — a  tempting  allurement  now  presents  itself: 
they  have  recourse  to  a  thousand  quibbles,  a  thousand  pre- 
tences, to  retain  an  important  place,  or  a  country  which  is 
conveniently  situated  for  their  purposes.  The  subject  is  too 
odious  for  us  to  allege  examples :  they  are  well  enough  known, 
and  sufficiently  numerous  to  convince  every  sensible  nation, 
that  it  is  very  imprudent  to  make  over  such  securities. 

But  if  the  debt  be  not  paid  at  the  appointed  time,  or  if  the  ?  244. 
treaty  be  not  fulfilled,  what  has  been  given  in  security  may she 
be  retained  and  appropriated,  or  the  mortgage  seized,  at  least  P™^ 
until  the  debt  be  discharged,  or  a  just  compensation  made. 

*  Jura  negat  sibi  nat»,  nihil  HOB  arrogat  armis.— HORAT. 


238  OF   SECURITIES   GIVEN   FOR 

The  house  of  Savoy  had  mortgaged  the  country  of  Vaud  to 
cantons  of  Bern  and  Fribourg ;  and  those  two  cantons, 
finding  that  no  payments  were  made,  had  recourse  to  arms, 
and  took  possession  of  the  country.  The  duke  of  Savoy,  in- 
stead of  immediately  satisfying  their  just  demands,  opposed 
force  to  force,  and  gave  them  still  further  grounds  of  com- 
plaint :  wherefore  the  cantons,  finally  successful  in  the  con- 
test, have  since  retained  possession  of  that  fine  country,  as 
well  for  the  payment  of  the  debt,  as  to  defray  the  expenses 
of  the  war,  and  to  obtain  a  just  indemnification. 

g  245.  Finally,  there  is,  in  the  way  of  security,  another  precau- 

Hostages.  fo^  Of  Very  ancient  institution,  and  much  used  among  nations 
— which  is,  to  require  hostages.  These  are  persons  of  conse- 
quence, delivered  up  by  the  promising  party,  to  him  with 
[  239  ]  whom  he  enters  into  an  engagement,  to  be  detained  by  the 
latter  until  the  performance  of  the  promises  which  are  made 
to  him.  In  this  case,  as  well  as  in  those  above  mentioned, 
the  transaction  is  a  pignorary  contract,  in  which  free  men 
are  delivered  up,  instead  of  towns,  countries,  or  jewels.  With 
respect  to  this  contract,  therefore,  we  may  confine  ourselves 
to  those  particular  observations  which  the  difference  of  the 
things  pledged  renders  necessary. 

£  246.  What     The  sovereign  who  receives  hostages  has  no  other  right 
right  we       over  them  than  that  of  securing  their  persons,  in  order  to 
have  over     detain  them  till  the  entire  accomplishment  of  the  promises 
ostages.      o£  which  they  are  the  pledge.     He  may  therefore  take  pre- 
cautions to  prevent  their  escaping  from  him :  but  those  pre- 
cautions  should   be   moderated   by  humanity  towards  men 
whom  he  has  no  right  to  use  ill ;  and  they  ought  not  to  be 
extended  beyond  what  prudence  requires. 

It  is  pleasing  to  behold  the  European  nations  in  the  pre- 
sent age  content  themselves  with  the  bare  parol  of  their  host- 
ages.    The  English  noblemen  who  were  sent  to  France  in 
that  character,  in  pursuance  of  the  treaty  of  Aix-la-Chapelle, 
in  1748,  to  stay  till  the  restitution  of  Cape  Breton,  were 
solely  bound  by  their  word  of  honour,  and  lived  at  court,  and 
at  Paris,  rather  as  ministers  of  their  nation  than  as  hostages. 
?  247.  Their     ^ke  liberty  of  the  hostages  is  the  only  thing  pledged  :  and 
w^°  ^as  g/ven  tnem  Breaks  his  promise,  they  may  be 
detained  in  captivity.     Formerly  they  were  in  such  cases  put 
to  death ; — an  inhuman  cruelty,  founded  on  an  error.    It  was 
imagined  that  the  sovereign  might  arbitrarily  dispose  of  the 
lives  of  his  subjects,  or  that  every  man  was  the  master  of  his 
own  life,  and  had  a  right  to  stake  it  as  a  pledge  when  he  de- 
livered himself  up  as  a  hostage. 
§  248.  When     As  soon  as  the  engagements  are  fulfilled,  the  cause  for 
If  ^ntback  wkich  the  hostages  were  delivered  no  longer  subsists :  they 
'  then  immediately  become  free,  and  ought  to  be  restored  with- 
out delay.     They  ought  also  to  be  restored,  if  the  reason  for 
which  they  were  demanded  does  not  take  place :  to  detain 

336 


THE   OBSERVANCE   OF   TREATIES.  239 

them  then  would  be  to  abuse  the  sacred  faith  upon  which  BOOK  n. 
they  are  delivered.  The  perfidious  Christiern  II.,  king  of  CHAP'  XVI- 
Denmark,  being  delayed  by  contrary  winds  before  Stockholm, 
and,  together  with  his  whole  fleet,  ready  to  perish  with 
famine,  made  proposals  of  peace :  whereupon,  the  adminis- 
trator, Steno,  imprudently  trusting  to  his  promises,  furnished 
the  Danes  with  provisions,  and  even  gave  Gustavus  and  six 
other  noblemen  as  hostages  for  the  safety  of  the  king,  who 
pretended  to  have  a  desire  to  come  on  shore :  but,  with  the 
first  fair  wind,  Christiern  weighed  anchor,  and  carried  off  the 
hostages  ;  thus  repaying  the  generosity  of  his  enemy  by  an 
infamous  act  of  treachery.* 

Hostages  being  delivered  on  the  faith  of  treaties,  and  he  §  249.  Whe- 
who  receives  them  promising  to  restore  them  as  soon  as  the ther  they 
promise  of  which  they  are  the  surety  shall  be  fulfilled, — such  ^nedeone~ 
engagements  ought  to  be  literally  accomplished :  and  the  any  other 
hostages  should  be  really  and  faithfully  restored  to  their  for-  account 
mer  condition,  as  soon  as  the  accomplishment  of  the  promise 
has  disengaged  them.  It  is,  therefore,  not  allowable  to  de- 
tain them  for  any  other  cause ;  and  I  am  astonished  to  find  [  240  ] 
that  some  learned  writers  teach  a  contrary  doctrine.f  They 
ground  their  opinion  upon  the  principle  which  authorizes  a 
sovereign  to  seize  and  detain  the  subjects  of  another  state  in 
order  to  compel  their  rulers  to  do  him  justice.  The  prin- 
ciple is  true  ;  but  the  application  is  not  just.  These  authors 
seemed  to  have  overlooked  the  circumstance,  that,  were  it  not 
for  the  faith  of  the  treaty  by  virtue  of  which  the  hostage  has 
been  delivered,  he  would  not  be  in  the  power  of  that  sove- 
reign, nor  exposed  to  be  so  easily  seized ;  and  that  the  faith 
of  such  a  treaty  does  not  allow  the  sovereign  to  make  any 
other  use  of  his  hostage  than  that  for  which  he  was  intended, 
or  to  take  advantage  of  his  detention  beyond  what  has  been 
expressly  stipulated.  The  hostage  is  delivered  for  the  secu- 
rity of  a  promise,  and  for  that  alone.  As  soon,  therefore,  as 
the  promise  is  fulfilled,  the  hostage,  as  we  have  just  observed, 
ought  to  be  restored  to  his  former  condition.  To  tell  him 
that  he  is  released  as  a  hostage,  but  detained  as  a  pledge  for 
the  security  of  any  other  pretension,  would  be  taking  advan- 
tage of  his  situation  as  a  hostage,  in  evident  violation  of  the 
spirit  and  even  the  letter  of  the  convention,  according  to 
which,  as  soon  as  the  promise  is  accomplished,  the  hostage  is 
to  be  restored  to  himself  and  his  country,  and  reinstated  in 
his  pristine  rank,  as  if  he  had  never  been  a  hostage.  With- 
out a  rigid  adherence  to  this  principle,  it  would  no  longer  be 
safe  to  give  hostages,  since  princes  might,  on  every  occasion, 
easily  devise  some  pretext  for  detaining  them.  Albert  the 
Wise,  duke  of  Austria,  making  war  against  the  city  of  Zurich, 

*  History  of  the  Revolutions  of  Sweden. 

|  Grotius,  lib.  iii.  cap.  xx.  §  55. — Wolfius,  Jus  Gent.  §  503. 

43  2  D  337 


240  OF   SECURITIES   GIVEN   FOR 

BOOK  n.  in  the  year  1351,  the  two  parties  referred  the  decision  of  their 
CHAP,  xvr.  ^p^es  to  arbitrators,  and  Zurich  gave  hostages.  The  arbi- 
trators passed  an  unjust  sentence,  dictated  by  partiality. 
Zurich,  nevertheless,  after  having  made  a  well-grounded  com- 
plaint on  the  subject,  determined  to  submit  to  their  decision. 
But  the  duke  formed  new  pretensions,  and  detained  the  hos- 
tages,* contrary  to  the  faith  of  the  compromise,  and  in  evident 
contempt  of  the  law  of  nations. 

§  250.  They     But  a  hostage  may  be  detained  for  his  own  actions,  for 
may  be  de-  crimes  committed,  or  debts  contracted  in  the  country  while  he 
SSTowii     *s  *n  hostage  there.     This  is  no  violation  of  the  faith  of  the 
actions.       treaty.     In  order  to  be  sure  of  recovering  his  liberty,  accord- 
ing to  the  terms  of  the  treaty,  the  hostage  must  not  claim  a 
right  to  commit,  with  impunity,  any  outrages  against  the  na- 
tion by  which  he  is  kept ;  and  when  he  is  about  to  depart,  it 
is  just  that  he  should  pay  his  debts. 

f  251.    Of        It  is  the  party  who  gives  the  hostages  that  is  to  provide 
the  support  for  their  support ;  for,  it  is  by  his  order,  and  for  his  service, 
of  hostages,  ^at  ^gy  are  jn  nostage.     He  who  receives  them  for  his  own 
security  is  not  bound  to  defray  the  expense  of  their  subsist- 
ence, but  simply  that  of  their  custody,  if  he  thinks  proper  to 
[  241  1  se^  a  guar(l  °ver  them. 

g  252.   A         The  sovereign  may  dispose  of  his  subjects  for  the  service 

subject  can-  Of  the  state  ;  he  may,  therefore,  give  them  also  as  hostages ; 

ie  to  and  the  person  who  is  nominated  for  that  purpose  is  bound 

e  a  ostage.  ^  obey,  as  he  is,  on  every  other  occasion,  when  commanded 

for  the  service  of  his  country.     But,  as  the  expenses  ought 

to  be  borne  equally  by  the  citizens,  the  hostage  is  entitled  to 

be  defrayed  and  indemnified  at  the  public  charge. 

It  is,  evidently,  a  subject  alone  who  can  be  given  as  a  hos- 
tage against  his  will.  With  a  vassal,  the  case  is  otherwise. 
What  he  owes  to  the  sovereign,  is  determined  by  the  condi- 
tions of  his  fief;  and  he  is  bound  to  nothing  more.  Accord- 
ingly, it  is  a  decided  point  that  a  vassal  cannot  be  constrained- 
to  go  as  a  hostage,  unless  he  be  at  the  same  time  a  subject. 

Whoever  has  a  power  to  make  treaties  or  conventions,  may 
give  and  receive  hostages.  For  this  reason,  not  only  the 
sovereign,  but  also  the  subordinate  authorities,  have  a  right 
to  give  hostages  in  the  agreements  they  make,  according  to 
the  powers  annexed  to  their  office,  and  the  extent  of  their 
commission.  The  governor  of  a  town,  and  the  besieging 
general,  give  and  receive  hostages  for  the  security  of  the 
capitulation:  whoever  is  under  their  command  is  bound  to 
obey,  if  he  is  nominated  for  that  purpose. 

|  253.  Rank     Hostages  ought  naturally  to  be  persons  of  consequence, 

of  the  host-  gince  they  are  required  as  a  security.     Persons  of  mean  con- 

»§es-  dition  would  furnish  but  a  feeble  security,  unless  they  were 

given  in  great  numbers.     Care  is  commonly  taken  to  settle 

*  Tschudi,  voL  L  p.  421. 


THE  OBSERVANCE  OF  TREATIES.  241 

the  rank  of  the  hostages  that  are  to  be  delivered ;  and  the    BOOK  n. 
violation  of  a  compact  in  this  particular  is  a  flagrant  derelic-  CHAP'  XVI> 
tion  of  good  faith  and  honour.     It  was  a  shameful  act  of 
perfidy  in  La  Trimouille  to  give  the  Swiss  only  hostages  from 
the  dregs  of  the  people,  instead  of  four  of  the  principal  citi- 
zens of  Dijon,  as  had  been  stipulated  in  the  famous  treaty 
we  mentioned  above  (§  212).     Sometimes  the  principal  per- 
sons of  the  state,  and  even  princes,  are  given  in  hostage. 
Francis  I.  gave  his  own  sons  as  security  for  the  treaty  of 
Madrid. 

The  sovereign  who  gives  hostages  ought  to  act  ingenuously  2  2J»4-  They 
in  the  affair, — giving  them  in  reality  as  pledges  of  his  word,  ^^^J0 
and,  consequently,  with  the  intention  that  they  should  be  kept  escapc. 
till  the  entire  accomplishment  of  his  promise.     He  cannot, 
therefore,  approve  of  their  making  their  escape :  and,  if  they 
take  such  a  step,  so  far  from  harbouring  them,  he  is  bound 
to  send  them  back.     The  hostage,  on  his  side,  conformably 
to  the  presumed  intention  of  his  sovereign,  ought  faithfully 
to  remain  with  him  to  whom  he  is  delivered,  without  endea- 
vouring to  escape.     Cloelia  made  her  escape  from  the  hands 
of  Porsenna,  to  whom  she  had  been  delivered  as  a  hostage ; 
but  the  Romans  sent  her  back,  that  they  might  not  incur  the 
guilt  of  violating  the  treaty.*  [  242  ] 

If  the  hostage  happens  to  die,  he  who  has  given  him  is  not  %  255.  whe- 
obliged  to  replace  him,  unless  this  was  made  a  part  of  the ther  a  host- 
agreement.     The  hostage  was  a  security  required  of  him:*?eegTg  °ofco 
that  security  is  lost  without  any  fault  on  his  side ;  and  there  replaced, 
exists  no  reason  why  he  should  be  obliged  to  give  another. 

If  any  one  substitutes  himself  for  a  time  in  the  place  of  a  §  258.    Of 
hostage,  and  the  hostage  happens  in  the  interim  to  dieallimwho 
natural  death,  the  substitute  is  free:  for,  in  this  case,  things  ^  ff\ 
are  -to  be  replaced  in  the  same  situation  in  which  they  would  hostage, 
have  been  if  the  hostage  had  not  been  permitted  to  absent 
•himself  and  substitute  another  in  his  stead :  and,  for  the  same 
reason,  the  hostage  is  not  free  by  the  death  of  him  who  has 
taken  his  place  only  for  a  time.     It  would  be  quite  the  con- 
trary, if  the  hostage  had  been  exchanged  for  another :  the 
former  would  be  absolutely  free  from  all  engagement ;  and 
the  person  who  had  taken  his  place  would  alone  be  bound. 

If  a  prince  who  has  been  given  in  hostage  succeeds  to  the  ?  257.   A 
crown,  he  ought  to  be  released  on  the  delivery  of  another  bost*sc  su<:- 
sufficient  hostage,  or  a  number  of  others,  who  shall  together  JJ^Vn. 
constitute  an  aggregate  security  equivalent  to  that  which  he 
himself  afforded  when  he  was  originally  given.     This  is  evi- 
dent from  the  treaty  itself,  which  did  not  import  that  the 
king  should  be  a  hostage.     The  detention  of  the  king's  per- 
son by  a  foreign  power  is  a  thing  of  too  interesting  a  nature 
to  admit  a  presumption  that  the  state  had  intended  to  expose 

*  Et  Romani  pignus  pacis  ex  fcedere  restituerunt.    Tit  Liv.  lib.  ii.  cap.  xiii. 


242  SECURITIES   GIVEN   FOR   THE   OBSERVANCE   OF   TREATIES. 

BOOK  n.  herself  to  the  consequences  of  such  an  event.  Good  faith 
_CHAP.  XVI'  ought  to  preside  in  all  conventions ;  and  the  manifest  or 
justly  presumed  intention  of  the  contracting  parties  ought 
to  be  adhered  to.  If  Francis  I.  had  died  after  having  given 
his  sons  as  hostages,  certainly  the  dauphin  should  have  been 
released :  for,  he  had  been  delivered  only  with  a  view  of  re- 
storing the  king  to  his  kingdom ;  and,  if  the  emperor  had 
detained  him,  that  view  would  have  been  frustrated,  since  the 
king  of  France  would  still  have  been  a  captive.  It  is  evi- 
dent, that,  in  this  reasoning,  I  proceed  on  the  supposition 
that  no  violation  of  the  treaty  has  taken  place  on  the  part 
of  the  state  which  has  given  a  prince  in  hostage.  In  case 
that  state  had  broken  its  promise,  advantage  might  reasonably 
be  taken  of  an  event  which  rendered  the  hostage  still  more 
valuable,  and  his  release  the  more  necessary. 

§  258.  The  The  liability  of  a  hostage,  as  that  of  a  city  or  a  country, 
liability  of  expires  with  the  treaty  which  it  was  intended  to  secure 
m£ST  (§§243>  248):  and  consequently,  if  the  treaty  is  personal, 
the  treaty,  the  hostage  is  free  at  the  moment  when  one  of  the  contract- 
ing powers  happens  to  die. 

g  259.  The  The  sovereign  who  breaks  his  word  after  having  given  host- 
violation  of  ages,  does  an  injury,  not  only  to  the  other  contracting  power, 
but  also  to  the  hostages  themselves.  For,  though  subjects 
are  indeed  bound  to  obey  their  sovereign  who  gives  them  in 
hostages,  hostage,  that  sovereign  has  not  a  right  wantonly  to  sacrifice 
[  243  ]  their  liberty,  and  expose  their  lives  to  danger  without  just 
reasons.  Delivered  up  as  a  security  for  their  sovereign's 
promise,  not  for  the  purpose  of  suffering  any  harm, — if  he 
entails  misfortune  on  them  by  violating  his  faith,  he  covers 
himself  with  double  infamy.  Pawns  and  mortgages  serve  as 
securities  for  what  is  due ;  and  their  acquisition  indemnifies 
the  party  to  whom  the  other  fails  in  his  engagements.  Host- 
ages are  rather  pledges  of  the  faith  of  him  who  gives  them ; 
and  it  is  supposed  that  he  would  abhor  the  idea  of  sacrificing, 
innocent  persons.  But,  if  particular  conjunctures  oblige  a 
sovereign  to  abandon  the  hostages, — if,  for  example,  the 
party  who  has  received  them  violates  his  engagements  in  the 
first  instance,  and,  in  consequence  of  his  violation,  the  treaty 
can  no  longer  be  accomplished  without  exposing  the  state  to 
danger, — no  measure  should  be  left  untried  for  the  delivery 
of  those  unfortunate  hostages ;  and  the  state  cannot  refuse 
to  compensate  them  for  their  sufferings,  and  to  make  them 
amends,  either  in  their  own  persons,  or  in  those  of  their 
relatives. 

g  260.  The  At  the  moment  when  the  sovereign  who  has  given  the 
hwrtMN*6  hostage  nas  violated  his  faith,  the  latter  ceases  to  retain  the 
whence  character  of  a  hostage,  and  becomes  a  prisoner  to  the  party 
who  has  who  had  received  him,  and  who  has  now  a  right  to  detain  him 
given  him  in  in  perpetual  captivity.  But  it  becomes  a  generous  prince  to 
fails  in  his  refram  from  an  exertion  of  his  rights  at  the  expense  of  an 

340 


OF   THE    INTERPRETATION    OF   TREATIES. 


243 


innocent  individual.     And  as  the  hostage  is  no  longer  bound    BOOK  n. 
by  any  tie  to  his  own  sovereign  who  has  perfidiously  aban--CHAP'  " 


doned  him, — if  he  chooses  to  transfer  his  allegiance  to  the  engage- 
prince  who  is  now  the  arbiter  of  his  fate,  the  latter  may  ac- ments- 
quire  a  useful  subject,  instead  of  a  wretched  prisoner,  the 
troublesome  object  of  his  commiseration.     Or  he  may  liberate 
and  dismiss  him,  on  settling  with  him  the  conditions. 

We  have  already  observed  that  the  life  of  a  hostage  can-  §  261.  Of 
not  be  lawfully  taken  away  on  account  of  the  perfidy  of  the the  ri8ht 
party  who  has  delivered  him.  The  custom  of  nations,  the  £°"°0dmd  °u 
most  constant  practice,  cannot  justify  such  an  instance  of 
barbarous  cruelty,  repugnant  to  the  law  of  nature.  Even  at 
a  time  when  that  dreadful  custom  was  but  too  much  autho- 
rized, the  great  Scipio  publicly  declared  that  he  would  not 
suffer  his  vengeance  to  fall  on  innocent  hostages,  but  on  the 
persons  themselves  who  had  incurred  the  guilt  of  perfidy,  and 
that  he  was  incapable  of  punishing  any  but  armed  enemies.* 
The  emperor  Julian  made  the  same  declaration,  f  All  that 
such  a  custom  can  produce,  is  impunity  among  the  nations 
who  practice  it.  Whoever  is  guilty  of  it  cannot  complain 
that  another  is  so  too :  but  every  nation  may  and  ought  to 
declare  that  she  considers  the  action  as  a  barbarity  injurious 
to  human  nature. 


CHAP.  XVII.  [  244  ] 

OF   THE   INTERPRETATION   OF   TREATIES.  (130)  CHAP.  XTII. 

IF  the  ideas  of  men  were  always  distinct  and  perfectly  g  262.    Ne- 
(L'terminate, — if,  for  the  expression  of  those  ideas,  they  had  cessity  of 
none  but  proper  words,  no  terms  but  such  as  were  clear,  pre-  establisl\5ns 
cise,  and  susceptible  only  of  one  sense,— there  would  never  J^re°tltbn. 

*  Tit.  Liv.  lib.  xxviii.  cap.  xxxiv.  the  same.  (Ephinstone  v.  Sedreechund, 
t  See  Grotius,  lib.  iii.  cap.  xi.  §  18,  Knapp's  Rep.  340 ;  Undo  v.  Rodney, 
not-  2-  Dougl.  313.)  Political  treaties  be- 
(130)  See  further  as  to  the  construe-  tween  a  foreign  state  and  subjects  of 
tion  of  treaties,  post  B.  IV.  Ch.  III.  §  32,  the  crown  of  Great  Britain,  acting  as 
post,  443.  This  chapter  is  highly  an  independent  state  under  the  powers 
important  to  be  studied,  in  relation  to  granted  by  charter  and  act  of  parlia- 
questions  respecting  the  construction  ment,  are  not  a  subject  of  municipal 
of  private  contracts,  statutes,  &c.,  as  jurisdiction:  therefore,  a  bill  founded 
well  as  of  treaties,  as  many  of  the  rules  on  such  treaties  by  the  nabob  of  Arcot 
are  capable  of  general  application,  against  the  East  India  Company,  was 
Questions  respecting  the  conduction,  dismissed.  (Nabob  of  Carnatic  v.  East 
infraction,  or  observance  of  treaties,  are  India  Company,  2  Ves.  jun.  56 ;  and 
not  in  general  directly  agitated  in  any  see  in  general,  Hill  v.  Reardon,  2  Sim. 
municipal  court  of  law  or  equity  of  &  Stu.  437;  Jacob,  Rep.  84;  2  Russ. 
Great  Britain,  at  least  as  regards  the  Rep.  608 — 633;  confirming  the  gene- 
adjustment  of  any  claims  between  the  ral  rule,  but  admitting  the  jurisdiction 
respective  states  who  were  parties  to  of  a  court  of  equity,  where  there  has 
2  D  2  341 


244 


OF   THE   INTERPRETATION   OF   TREATIES. 


BOOK   II, 
CHAP.    X 


be  any  difficulty  in  discovering  their  meaning  in  the  words 
lil  by  which  they  intended  to  express  it :  nothing  more  would  be 
necessary  than  to  understand  the  language.     But,  even  on 


been  a  truit.)  But,  collaterally,  courts 
of  law  very  frequently  have  to  discuss 
and  to  construe  and  give  effect  to  trea- 
ties, as  regards  the  private  rights  of.^ 
subjects  ;  and,  after  ascertaining  the  par- 
ticular object  of  the  treaty,  the  courts 
then  construe  it  nearly  by  the  same 
rules  as  affect  contracts  between  private 
individuals.  (Per  Eyre,  C.  J.  in  Mar- 
ryatt  v.  Wikon,  1  Bos.  &  Pul.  436 — 439. 
And  see  in  general,  as  to  the  construc- 
tion of  treaties,  Marriott's  case  of 
Dutch  ship,  12,  13,  Ac.)  One  general 
rule  to  be  ever  kept  in  view  is,  that  it  is 
the  essence  of  a  definitive  treaty  of 
peace  that  the  commercial  friendly  in- 
tercourse of  the  contracting  powers 
must  be  replaced  in  its  former  state.  (2 
Chalmer's  Opinion,  849.) 

Vattel,  in  pages  244—274,  elabo- 
rately lays  down  several  rules  for  con- 
struing treaties.  In  a  learned  opinion 
upon  the  subject,  it  has  been  well  ob- 
served, that  treaties,  being  in  their 
nature  compacts  superseding  the  com- 
mon usage,  which  is,  strictly  speaking, 
the  law  of  nations,  by  particular  stipu- 
lations, are  to  be  argued  upon  the  foot- 
ing of  all  obligations  which  arise  from 
contract,  expressed  or  tacit,  whether 
quasi  ex  contractu,  or  necessarily  implied 
by  general  words  of  comprehension  ; 
and  the  principles  of  the  civil  law  de 
obligationibiu,  which  is  the  law  admitted 
by  all  nations  in  Europe,  by  most  in 
their  domestic  and  by  all  in  national 
questions,  must  be  allowed  to  arbitrate 
in  deciding  the  validity,  existence,  and 
meaning  of  a  public  treaty,  by  the  same 
rules  and  reasonings  as  when  applied 
to  any  other  contract  of  private  life. 
Words  or  characters  are  merely  used 
to  convey,  by  marks  or  sounds,  the 
ideas  of  consent,  and  to  preserve  the 
memory  of  compacts:  now,  the  end 
being  thus  principally  to  be  considered, 
and  the  means  being  regarded  only  as 
declarative  of  the  end,  if  by  any  other 
means  than  by  strict  words  a  contract 
is  implied,  it  is  undoubtedly  valid  when- 
ever there  appears,  from  any  acts  or 
reasonable  interpretations  of  signs,  an 
acknowledged  consent,  and  equitable 
foundations  of  contracting;  these  cir- 
cumstances making  the  very  substance 
of  a  contract.  (Sir  James  Marriott's 
Opinion  on  the  Duration  of  the  Treaty 
of  Neutrality  in  1686,  in  Chalmer's 
342 


Collect,  of  Opinions,  vol.  2,  345,  346.) 
Therefore,  the  rules  of  customary  con- 
tracts between  private  individuals  may 
in  general  be  called  in  aid.  However, 
in  debating  any  question  upon  treaties 
arising  between  nation  and  nation,  in 
the  age  we  live  in,  it  is  necessary  to 
keep  in  view  the  general  state  and  con- 
dition of  the  contracting  powers,  from 
whence  the  arguments  of  public  law 
can  only  be  drawn  with  any  just  deci- 
sion. (2  Chalmer's  Col.  Op.  347.)  It 
has  also  been  considered  that  a  general 
commercial  treaty,  not  limited  by  its 
terms  to  a  particular  time,  is  only  sus- 
pended by  a  war;  and  that,  upon  the 
return  of  peace,  it  will  tacitly  revive  by 
implication,  unless  there  be  an  express 
declaration  to  the  contrary.  (2  Chal- 
mer's Col.  Op.  344—355.)  In  the 
great  case  of  Marryatt  v.  Wikon,  upon 
the  construction  of  the  treaty  between 
Great  Britain  and  the  United  States,  in 
error  in  the  Exchequer  Chamber,  Eyre, 
Ch.  J.,  after  observing  that  a  treaty 
should  be  construed  liberally,  and  con- 
sistent with  the  good  faith  which  al- 
ways distinguishes  a  great  nation,  said, 
that  courts  of  law,  although  not  the 
expounders  of  a  treaty,  yet  when  it  is 
brought  under  their  consideration  in- 
cidentally, they  must  say  how  the 
treaty  is  to  be  understood  between  the 
parties  to  the  action,  and  in  doing 
which,  they  have  but  one  rule  by 
which  to  govern  themselves.  We  are 
to  construe  this  treaty  as  we  would 
construe  any  other  instrument,  public 
or  private ;  we  are  to  collect  from  the 
nature  of  the  subject,  from  the  words 
and  the  context,  the  true  intent  and 
meaning  of  the  contracting  parties, 
whether  they  are  A.  and  B.,  or  happen 
to  be  two  independent  states.  (Per 
Eyre,  Ch.  J.,  in  Marryatt  v.  Wilson, 
1  Bos.  &  Pul.  436 — 439.  j  The  United 
States  v.  Arredondo  et  al.,  6  Peters'  S.  C. 
Rep.  610.} 

With  respect  to  the  general  rules 
for  construing  private  contracts,  and 
which  equally  apply  to  treaties,  see 
cases  collected,  Chitty  on  Bills,  8  ed. 
190—194.  Paley  on  Moral  Phil.  126. 
The  editor  has  purposely  refrained  from 
fortifying  the  excellent  rules  laid  down 
in  the  context,  by  numerous  instances, 
feeling  that  thatattemptmightratheren- 
cumber  than  improve  this  edition. — C. 


OF  THE   INTERPRETATION   OF  TREATIES.  244 

this  supposition,  the  art  of  interpretation  would  still  not  be  BOOK  n. 
useless.  In  concessions,  conventions,  and  treaties,  in  all  con-  CHAP,  xvn. 
tracts,  as  well  as  in  the  laws,  it  is  impossible  to  foresee  and 
point  out  all  the  particular  cases  that  may  arise  ;  we  decree, 
we  ordain,  we  agree  upon  certain  things,  and  express  them  in 
general  terms ;  and,  though  all  the  expressions  of  a  treaty 
should  be  perfectly  clear,  plain,  and  determinate,  the  true  in- 
terpretation would  still  consist  in  making,  in  all  the  particular 
cases  that  present  themselves,  a  just  application  of  what  has 
been  decreed  in  a  general  manner.  But  this  is  not  all : — 
conjectures  vary,  and  produce  new  kinds  of  cases,  that  can- 
not be  brought  within  the  terms  of  the  treaty  or  the  law, 
except  by  inferences  drawn  from  the  general  views  of  the 
contracting  parties,  or  of  the  legislature.  Between  different 
clauses,  there  will  be  found  contradictions  and  inconsistencies, 
real  or  apparent ;  and  the  question  is,  to  reconcile  such  clauses, 
and  point  out  the  path  to  be  pursued.  But  the  case  is  much 
worse  if  we  consider  that  fraud  seeks  to  take  advantage  even 
of  the  imperfection  of  language,  and  that  men  designedly 
throw  obscurity  and  ambiguity  into  their  treaties,  in  order  to 
be  provided  with  a  pretence  for  eluding  them  upon  occasion. 
It  is  therefore  necessary  to  establish  rules  founded  on  reason, 
and  authorized  by  the  law  of  nature,  capable  of  diffusing  light 
over  what  is  obscure,  of  determining  what  is  uncertain,  and 
of  frustrating  the  views  of  him  who  acts  with  duplicity  in 
forming  the  compact.  Let  us  begin  with  those  that  tend  par- 
ticularly to  this  last  end, — with  those  maxims  of  justice  and 
equity  which  are  calculated  to  repress  fraud,  and  to  prevent 
the  effect  of  its  artifices. 

The  first  general  maxim  of  interpretation  is,  that  It  is  not  §  263.   1st 
allowable  to  interpret  what  has  no  need  of  interpretation.  seneral 
When  a  deed  is  worded  in  clear  and  precise  terms, — when  ™"™aiiow- 
its  meaning  is  evident,  and  leads  to  no  absurd  conclusion, —  abie  to  in- 
there  can  be  no  reason  for  refusing  to  admit  the  meaning  terpret  what 
which  such  deed  naturally  presents.     To   go   elsewhere   inhas.noneed 
search  of  conjectures,  in  order  to  restrict  or  extend  it,  is  but  t° 
an  attempt  to  elude  it.     If  this  dangerous  method  be  once 
admitted,  there  will  be  no  deed  which  it  will  not  render  use- 
less.    However  luminous  each  clause  may  be, — however  clear 
and  precise  the  terms  in  which  the  deed  is  couched, — all  this  [  245  ] 
will  be  of  no  avail,  if  it  be  allowed  to  go  in  quest  of  extrane- 
ous arguments,  to  prove  that  it  is  not  to  be  understood  in  the 
sense  which  it  naturally  presents.* 

Those  cavillers  who  dispute  the  sense  of  a  clear  and  deter- 

(131)  See  the  same  maxim,  Paley's  *  Standum  omnino  est  iis,  quae  verbis 
Moral  Philos.  126 ;  Chit,  on  Bills,  8  ed.  expressis,  quorum  manifestus  est  sig- 
190  to  194.  There  is  another  rule,  (post,  nificatus,  indicata  fuerunt,  nisi  omnem 
443,  §  32),  to  construe  against  the  party  a  negotiis  humanis  certitudinem  re- 
prescribing  the  terms  of  treaty,  or  the  movere  volueris.  WOLF.  Jus  Nat  par 
superior.  vii.  n.  822. 

343 


245  OF   THE   INTERPRETATION   OF   TREATIES. 


BOOK  n.    minate  article,  are  accustomed  to  seek  their  frivolous  subter- 
fuges in  the  pretended  intentions  and  views  which  they  attri- 


CHAP. 


§  264.   2d    kute  to  its  author.     It  would  be  very  often  dangerous  to  enter 
inaxim1-  if   "with  them  into  the  discussion  of  those  supposed  views  that  are 
he  who        not  pointed  out  in  the  piece  itself.     The  following  rule  is  better 
could  and     calculated  to  foil  such  cavillers,  and  will  at  once  cut  short  all 
ought  to       chicanery: — If  he  who  could,  and  ought  to  have  explained 
^hdiied*"      himself  clearly  and  fully  has  not  done  it,  it  is  the  worse  for 
himself  has  him :  he  cannot  be  allowed  to  introduce  subsequent  restrictions 
not  done  it,  which  he  has  not  expressed.     This  is  a  maxim  of  the  Roman 
it  is  to  his    iaw :  Pactionem  obscurant  Us  nocere  in  quorum  fuit  potestate 
n^nt?6*""    leg  em  apertius  conscribere.*     The  equity  of  this  rule  is  glar- 
ingly obvious,  and  its  necessity  is  not  less  evident.     There 
will  be  no  security  in  conventions,  no  stability  in  grants  or 
concessions,  if  they  may  be  rendered  nugatory  by  subsequent 
limitations,  which  ought  to  have  been  originally  specified  in 
the  deed,  if  they  were  in  the  contemplation  of  the  contract- 
ing parties. 

f  265.  3d  The  third  general  maxim  or  principle  on  the  subject  of  in- 
general  terpretation  is,  that  Neither  the  one  nor  the  other  of  the  parties 
maxim:  interested  in  the  contract  has  a  riaht  to  interpret  the  deed  or 

neither  of  j*       *     i*  j?  TT<       •/?  *.  vu 

the  con-  treaty  according  to  his  oivn  fancy,  lor  if  you  are  at  liberty 
trading  par-  to  affix  whatever  meaning  you  please  to  my  promise,  you  will 
ties  has  a  have  the  power  of  obliging  me  to  do  whatever  you  choose, 
nght  to  m-  contrary  to  my  intention,  and  beyond  my  real  engagements : 
treatTac-0  an(^>  on  *ne  °tner  hand,  if  I  am  allowed  to  explain  my  pro- 
cording  to  mises  as  I  please,  I  may  render  them  vain  and  illusory,  by 
his  own  giving  them  a  meaning  quite  different  from  that  which  they 
fancy.  presented  to  you,  and  in  which  you  must  have  understood 

them  at  the  time  of  your  accepting  them. 

§  266.  4th  On  every  occasion  when  a  person  could  and  ought  to  have 
general  made  known  his  intention,  we  assume  for  true  against  him 
xim:  what  he  has  sufficiently  declared.  This  is  an  incontestable 
e-  principle,  applied  to  treaties :  for,  if  they  are  not  a  vain  play 
tiared,  is  to  of  words,  the  contracting  parties  ought  to  express  themselves 
be  taken  for  in  them  with  truth,  and  according  to  their  real  intentions. 
*"••  If  the  intention  which  is  sufficiently  declared  were  not  to  be 

taken  of  course  as  the  true  intention  of  him  who  speaks  and 

enters  into  engagements,  it  would  be  perfectly  useless  to  form 

contracts  or  treaties. 

\  267.  We  But  it  is  here  asked,  which  of  the  contracting  parties  ought 
ought  to  at-  to  have  his  expressions  considered  as  the  more  decisive,  with 
tend  rather  regpect  to  tne  true  meaning  of  the  contract,— whether  we 

to  the  words    ,    r .  ,  ,  .  ,         -  , '.  ,  , 

of  the  per-  should  lay  a  greater  stress  on  the  words  of  him  who  makes 
son  promis-  the  promise,  than  on  those  of  the  party  who  stipulates  for  its 
ing,  than  to  performance.  As  the  force  and  obligation  of  every  contract 

*  Digest,   lib.  ii.  tit  xiv.  de  Pactis,     nocere   potius    debere  venditori   qui  id 
leg.  39. — See  likewise  Digest,  lib.  xviii.     dixerit,  quam   emptori ;  quia  potuit  n 
tit  i.  de    Contrahenda    Emptione,  leg.     integra  apertius  dicere. 
21.     Labeo  scripsit  obscuritatem  paoti 
344 


OF   THE   INTERPRETATION   OP   TREATIES.  246 

arise  from  a  perfect  promise, — and  the  person  who  makes  BOOK  n. 
the  promise  is  no  further  engaged  than  his  will  is  sufficiently  CHAP-  XY1I> 
declared, — it  is  very  certain,  that,  in  order  to  discover  the those  of. the 
true  meaning  of  the  contract,  attention  ought  principally  to  Jj^7  stlpu* 
be  paid  to  the  words  of  the  promising  party.  For,  he  volun- 
tarily binds  himself  by  his  words  ;  and  we  take  for  true  against 
him  what  he  has  sufficiently  declared.  This  question  seems 
to  have  originated  from  the  manner  in  which  conventions  are 
sometimes  made :  the  one  party  offers  the  conditions,  and 
the  other  accepts  them ;  that  is  to  say,  the  former  proposes 
what  he  requires  that  the  other  shall  oblige  himself  to  perform, 
and  the  latter  declares  the  obligations  into  which  he  really 
enters.  If  the  words  of  him  who  accepts  the  conditions  bear 
relation  to  the  words  of  him  who  offers  them,  it  is  certainly 
true  that  we  ought  to  lay  our  principal  stress  on  the  expres- 
sions of  the  latter :  but  this  is  because  the  person  promising 
is  considered  as  merely  repeating  them  in  order  to  form  his 
promise.  The  capitulations  of  besieged  towns  may  here  serve 
us  for  an  example.  The  besieged  party  proposes  the  condi- 
tions on  which  he  is  willing  to  surrender  the  place :  the  be- 
sieger accepts  them :  the  expressions  of  the  former  lay  no 
obligation  on  the  latter,  unless  so  far  as  he  adopts  them.  He 
who  accepts  the  conditions  is  in  reality  the  promising  party ; 
and  it  is  in  his  words  that  we  ought  to  seek  for  the  true  mean- 
ing of  the  articles,  whether  he  has  himself  chosen  and  formed 
his  expressions,  or  adopted  those  of  the  other  party,  by  refer- 
ring to  them  in  his  promise.  But  still  we  must  bear  in  mind 
the  maxim  above  laid  down,  viz.,  that  what  he  has  sufficiently 
declared  is  to  be  taken  as  true  against  him.  I  proceed  to 
explain  myself  more  particularly  on  this  subject. 

In  the  interpretation  of  a  treaty,  or  of  any  other  deed  what-  \  268.   5th 
soever,  the  question  is,  to  discover  what  the  contracting  parties  general 
have  agreed  upon, — to  determine  precisely,  on  any  particular  ™^i™^e 
occasion,  what  has  been  promised  and  accepted, — that  is  to^onr^jght 
say,  not  only  what  one  of  the  parties  intended  to  promise,  to  be  made 
but  also  what  the  other  must  reasonably  and  candidly  have  according  to 
supposed  to  be  promised  to  him, — what  has  been  sufficiently  cejtein 
declared  to  him,  and  what  must  have  influenced  him  in  his  ac- ru 
ceptance.     Every  deed,  therefore,  and  every  treaty,  must  be 
interpreted  by  certain  fixed  rules  calculated  to  determine  its 
meaning,  as  naturally  understood  by  the  parties  concerned  at 
the  time  when  the  deed  was  drawn  up  and  accepted.     This  is 
a  fifth  principle. 

As  these  rules  are  founded  on  right  reason,  and  are  conse- 
quently approved  and  prescribed  by  the  law  of  nature,  every 
man,  every  sovereign,  is  obliged  to  admit  and  to  follow  them. 
Unless  certain  rules  be  admitted  for  determining  the  sense  in 
which  the  expressions  are  to  be  taken,  treaties  will  be  only 
empty  words ;  nothing  can  be  agreed  upon  with  security,  and 

44  345 


247  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  n.    it  will  be  almost  ridiculous  to  place  any  dependence  on  the 
CHAP,  xvii.  eg-ect  Of  conventions. 

§  269.    The      But,  as  sovereigns  acknowledge  no  common  judge,  no  su- 
faith  of       perior  that  can  oblige  them  to  adopt  an  interpretation  founded 
treaties  lays  on  jug£  ru\es^  ^ne  faith  of  treaties  constitutes  in  this  respect 
tton'tofoi-    a^  *ne  security  of  the  contracting  powers.     That  faith  is  no 
low  these     less  violated  by  a  refusal  to  admit  an  evidently  fair  interpre- 
ruies.          tation,  than  by  an  open  infraction.     It  is  the  same  injustice, 
the  same  want  of  good  faith ;  nor  is  its  turpitude  rendered 
less  odious  by  being  choked  up  in  the  subtilties  of  fraud. 
§  270.    Ge-      Let  us  now  enter  into  the  particular  rules  on  which  the 
rai  rule  of    interpretation  ought  to  be  formed,  in  order  to  be  just  and 
interpreta-    g^     ginCe  the  sole  object  of  the  lawful  interpretation  of  a 
deed  ought  to  be  the  discovery  of  the  thoughts  of  the  author 
or  authors  of  that  deed, — whenever  we  meet  with  any  obscu- 
rity in  it,  we  are  to  consider  what  probably  ivere  the  ideas  of 
those  who  drew  up  the  deed,  and  to  interpret  it  accordingly. 
This  is  the  general  rule  for  all  interpretations.     It  particu- 
larly serves  to  ascertain  the  meaning  of  particular  expressions 
whose  signification  is  not  sufficiently  determinate.     Pursuant 
to  this  rule,  we  should  take  those  expressions  in  their  utmost 
latitude  when  it  seems  probable  that  the  person  speaking  had 
in  contemplation  every  thing  which,  in  that  extensive  sense, 
they  are  capable  of  designating :  and,  on  the  other  hand,  we 
ought  to  restrict  their  meaning,  if  the  author  appears  to  have 
confined  his  idea  to  what  they  comprehend  in  their  more 
limited  signification.     Let  us  suppose  that  a  husband  has  be- 
queathed to  his  wife  all  his   money.     It  is  required  to  know 
whether  this  expression  means  only  his  ready  money,  or  whe- 
ther it  extends  also  to  that  which  is  lent  out,  and  is  due  on 
notes  and  other  securities.     If  the  wife  is  poor, — if  she  was 
beloved  by  her  husband, — if  the  amount  of  the  ready  money 
be  inconsiderable,  and  the  value  of  the  other  property  greatly 
superior  to  that  of  the  money  both  in  specie  and  in  paper, — 
there  is  every  reason  to  presume  that  the  husband  meant  to 
bequeath  to  her  as  well  the  money  due  to  him  as  that  actu- 
ally contained  in  his  coffers.    On  the  other  hand,  if  the  woman 
be  rich, — if  the  amount  of  the  ready  specie  be  very  consider- 
able, and  the  money  due   greatly  exceeds  in  value  all  the 
other  property, — the  probability  is,  that  the  husband  meant 
to  bequeath  to  his  wife  his  ready  money  only. 

By  the  same  rule,  we  are  to  interpret  a  clause  in  the  utmost 
latitude  that  the  strict  and  appropriate  meaning  of  the  words 
will  admit,  if  it  appears  that  the  author  had  in  view  every 
thing  which  that  strict  and  appropriate  meaning  comprehends  : 
but  we  must  interpret  it  in  a  more  limited  sense  when  it  ap- 
pears probable  that  the  author  of  the  clause  did  not  mean  to 
extend  it  to  every  thing  which  the  strict  propriety  of  the 
terms  might  be  made  to  include.  As,  for  instance,  a  father, 
who  has  an  only  son,  bequeaths  to  the  daughter  of  his  friend 

346 


OF  THE   INTERPRETATION   OF  TREATIES.  248 

all  his  jewels.  He  has  a  sword  enriched  with  diamonds,  BOOK  n. 
given  him  by  a  sovereign  prince.  In  this  case  it  is  certainly  CHAP'  XYn* 
very  improbable  that  the  testator  had  any  intention  of  making 
over  that  honorable  badge  of  distinction  to  a  family  of  aliens. 
That  sword,  therefore,  together  with  the  jewels  with  which 
it  is  ornamented,  must  be  excepted  from  the  legacy,  and  the 
meaning  of  the  words  be  restricted  to  his  other  jewels.  But, 
if  the  testator  has  neither  son  nor  heir  of  his  own  name,  and 
bequeaths  his  property  to  a  stranger,  there  is  no  reason  to 
limit  the  signification  of  the  terms :  they  should  be  taken  in 
their  full  import,  it  being  probable  that  the  testator  used  them 
in  that  sense. 

The  contracting  parties  are  obliged  to  express  themselves  g  271.  The 
in  such  manner  that  they  may  mutually  understand  each tenns  arf to 
other.  This  is  evident  from  the  very  nature  of  the  transac- be  efxplai°?d 

m,  ,  '  •,  .       conformably 

tion.  Those  who  form  the  contract  concur  m  the  same  in-  to  comimm 
tentions ;  they  agree  in  desiring  the  same  thing ;  and  how  usage, 
shall  they  agree  in  this  instance,  if  they  do  not  perfectly 
understand  each  other  ?  Without  this,  their  contract  will  be 
no  better  than  a  mockery  or  a  snare.  If,  then,  they  ought 
to  speak  in  such  a  manner  as  to  be  understood,  it  is  necessary 
that  they  should  employ  the  words  in  their  proper  signifi- 
cation,— the  signification  which  common  usage  has  affixed  to 
them, — and  that  they  annex  an  established  meaning  to  every 
term,  every  expression  they  make  use  of.  They  must  not, 
designedly  and  without  mentioning  it,  deviate  from  the 
common  usage  and  the  appropriate  meaning  of  words  :  and  it 
is  presumed  that  they  have  conformed  to  established  custom 
in  this  particular,  as  long  as  no  cogent  reasons  can  be  ad- 
duced to  authorize  a  presumption  to  the  contrary ;  for,  the 
presumption  is,  in  general,  that  things  have  been  done  as 
they  ought.  From  all  these  incontestable  truths,  results  this 
rule :  In  the  interpretation  of  treaties,  compacts,  and  promises, 
we  ought  not  to  deviate  from  the  common  use  of  the  language, 
unless  we  have  very  strong  reasons  for  it.  In  all  human 
affairs,  where  absolute  certainty  is  not  at  hand  to  point  out 
the  way,  we  must  take  probability  for  our  guide.  In  most 
cases,  it  is  extremely  probable  that  the  parties  have  expressed 
themselves  conformably  to  the  established  usage :  and  such 
probability  ever  affords  a  strong  presumption,  which  cannot 
be  overruled  but  by  a  still  stronger  presumption  to  the  con- 
trary. Camden*  gives  us  a  treaty,  in  which  it  is  expressly 
said  that  the  treaty  shall  be  precisely  understood  according 
to  the  force  and  appropriate  signification  of  the  terms.  After 
such  a  clause,  we  cannot,  under  any  pretence,  deviate  from 
the  proper  meaning  which  custom  has  affixed  to  the  terms, — 
the  will  of  the  contracting  parties  being  thereby  formally  de- 
clared in  the  most  unambiguous  manner. 

*  History  of  Queen  Elizabeth. 

347 


284  OF   THE   INTERPRETATION   OF  TREATIES. 

BOOK  n.        The  usage  we  here  speak  of  is  that  of  the  time  when  the 
CHAP.  xvn.  .,.,.„„ ^  or  tne  deed,  of  whatever  kind,  was  drawn  up  and  con- 


l  272.    in-  eluded.     Languages  incessantly  vary,  and  the  signification 
oTa^cient11  an(^  f°rce  °f  words  change  with  time.     When,  therefore,  an 
treaties.       ancient  deed  is  to  be  interpreted,  we  should  be  acquainted 
with  the  common  use  of  the  terms  at  the  time  when  it  was 
[  249  ]  written ;  and  that  knowledge  is  to  be  acquired  from  deeds 
of  the  same  period,  and  from  contemporary  writers,  by  dili- 
gently comparing  them  with  each  other.     This  is  the  only 
source  from  which  to  derive  any  information  that  can  be  de- 
pended on.     The  use  of  the  vulgar  languages  being,  as  every 
one  knows,  very  arbitrary, — etymological  and  grammatical 
investigations,  pursued  with  a  view  to  discover  the  true  im- 
port of  a  word  in  common  usage,  would  furnish  but  a  vain 
theory,  equally  useless  and  destitute  of  proof. 

g  273.  Of  Words  are  only  designed  to  express  the  thoughts :  thus, 
quibbles  on  the  true  signification  of  an  expression  in  common  use  is  the 
words.  ^Q&  which  custom  has  affixed  to  that  expression.  It  is  then 
a  gross  quibble  to  affix  a  particular  sense  to  a  word,  in  order 
to  elude  the  true  sense  of  the  entire  expression.  Mahomet, 
emperor  of  the  Turks,  at  the  taking  of  Negropont,  having 
promised  a  man  to  spare"  his  head,  caused  him  to  be  cut  in 
two  through  the  middle  of  the  body.  Tamerlane,  after  having 
engaged  the  city  of  Sebastia  to  capitulate,  under  his  promise 
of  shedding  no  blood,  caused  all  the  soldiers  of  the  garrison 
to  be  buried  alive  :*  gross  subterfuges  which,  as  Cicero  re- 
marks,t  only  serve  to  aggravate  the  guilt  of  the  perfidious 
wretch  who  has  recourse  to  them.  To  spare  the  head  of  any 
one,  and  to  shed  no  blood,  are  expressions  which,  according  to 
common  custom,  and  especially  on  such  an  occasion,  mani- 
festly imply  to  spare  the  lives  of  the  parties. 

$  274   A         All  these  pitiful  subtilties  are  overthrown  by  this  unerring 
rule  on  this  ruie .  When  we  evidently  see  what  is  the  sense  that  agrees  with 
subject.        jjie  intennon  Of  ihe  contracting  parties,  it  is  not  allowable  to 
wrest  their  words  to  a  contrary  meaning.     The  intention, 
sufficiently  known,  furnishes  the  true  matter  of  the  conven- 
tion,— what  is  promised  and  accepted,  demanded  and  granted. 
A  violation  of  the  treaty  is  rather  a  deviation  from  the  inten- 
tion which  it  sufficiently  manifests,  than  from  the  terms  in 
which  it  is  worded :  for  the  terms  are  nothing  without  the 
intention  by  which  they  must  be  dictated. 

g  275.  Men-  Is  it  necessary,  in  an  enlightened  age,  to  say  that  mental 
tai  reserva-  reservations  cannot  be  admitted  in  treaties  ?  This  is  mani- 
tions.  feg^  gince,  by  the  very  nature  of  the  treaty,  the  parties  are 


*  See    Puffendorf's   Law  of  Nature  thing    of    the    perfidy    which    others 

and   Nations,  book    v.  chap.   xii.  g    3.  attribute  to  him. 

La   Croix,    in   his    Hist,   of  Timurbec,  f  Fraus   enim   adstringit,   non    dis- 

book  v.  chap.  xv.  speaks  of  this  cruelty  solvit    perjurium.      Do    Offic.    lib.    iii, 

of   Timurbec,    or    Tamerlane,    towards  chap,  xxxii. 
4000  Armenian  horsemen,  but  says  no- 


OF   THE  INTERPRETATION   OF   TREATIES.  249 

bound  to  express  themselves  in  such  manner  that  they  may    BOOS  n. 
mutually  understand  each  other  (§  271).     There  is  scarcely  CHAP  •  XJLT- 
an  individual  now  to  be  found  who  would  not  be  ashamed  of 
building  upon  a  mental  reservation.     What  can  be  the  use  of 
such  an  artifice,  unless  to  lull  the  opposite  party  into  a  false 
security,  under  the  vain  appearance  of  a  contract  ?     It  is, 
then,  a  real  piece  of  knavery. 

Technical  terms,  or  terms  peculiar  to  the  arts  and  sciences,  $  276.   In- 
ought  commonly  to  be  interpreted  according  to  the  definition  terpretation 
given  of  them  by  masters  of  the  art,  or  persons  versed  in  the  °e^hnical 
knowledge  of  the  art  or  science  to  which  the  terms  belong.     I  r  250  "] 
say  commonly,  for  this  rule  is  not  so  absolute  but  that  we  may 
and  even  ought  to  deviate  from  it,  when  we  have  good  rea- 
sons for  such  deviation;  as,  for  instance,  if  it  were  proved 
that  he  who  speaks  in  a  treaty,  or  in  any  other  deed,  did  not 
understand  the  art  or  science  from  which  he  borrowed  the 
term, — that  he  was  unacquainted  with  its  import  as  a  techni- 
cal word, — that  he  employed  it  in  a  vulgar  acceptation,  &c. 

If,  however,  the  technical  or  other  terms  relate  to  things  $  277.  Of 
that  admit  of  different  degrees,  we  ought  not  scrupulously  to  terms  whose 
adhere  to  definitions,  but  rather  to  take  the  terms  in  a  sense  ^J^ on 
agreeable  to  the  context ;  for  a  regular  definition  describes  a  aeo.rees. 
thing  in  its  most  perfect  state ;  and  yet  it  is  certain  that  we 
do  not  always  mean  it  in  that  state  of  its  utmost  perfection, 
whenever  we  speak  of  it.  Now,  the  interpretation  should 
only  tend  to  the  discovery  of  the  will  of  the  contracting 
parties  (§  268) :  to  each  term,  therefore,  we  should  affix  that 
meaning  which  the  party  whose  words  we  interpret  probably 
had  in  contemplation.  Thus,  when  the  parties  in  a  treaty 
have  agreed  to  submit  their  pretensions  to  the  decision  of  two 
or  three  able  civilians,  it  would  be  ridiculous  to  endeavour  to 
elude  the  compromise  under  the  pretence  that  we  can  find  no 
civilian  accomplished  in  every  point,  or  to  strain  the  terms  so 
far  as  to  reject  all  who  do  not  equal  Cujas  or  Grotius.  Would 
he  who  had  stipulated  for  the  assistance  of  ten  thousand  good 
troops,  have  any  reason  to  insist  upon  soldiers  of  whom  the 
very  worst  should  be  comparable  to  the  veterans  of  Julius 
Csesar  ?  And  if  a  prince  had  promised  his  ally  a  good  gene- 
ral, must  he  send  him  none  but  a  Marlborough  or  a  Turenne  ? 

There  are  figurative  expressions  that  are  become  so  familiar  §  278.  Of 
in  the  common  use  of  language,  that,  in  numberless  instances,  figurative 
they  supply  the  place  of  proper  terms,  so  that  we  ought  to  exPressions- 
take  them  in  a  figurative  sense,  without  paying  any  attention 
to  their  original,  proper,  and  direct  signification :  the  subject 
of  the  discourse  sufficiently  indicates  the  meaning  that  should 
be  affixed  to  them.     To  hatch  a  plot,  to  carry  fire  and  sword 
into  a  country,*  are  expressions   of  this  sort;   and   there 

*  The  French  expression,  "oudir  wie    of  a  web,-" — "fire  and  »word,"  literally, 
trame,"  which    is   rendered   "  hatch    a    "fire  and  steel,"  (or  iron). 
plot,"  literally  signifies,  "  to  lay  the  warp 

2E  349 


250  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  n.    scarcely  can  occur  an  instance  where  it  would  not  be  absurd 
CHAP.  XYII.  tn  taj,e  tjiein  JQ  tne-r  Direct  an(j  literal  sense. 

§  279.    Of        There  is  not  perhaps  any  language  that  does  not  also  con- 
equivocal     tain  words  which  signify  two  •  or  more  different  things,  and 
expressions.  phrases  which  are  susceptible  of  more  than  one  sense.   Thence 
arises  ambiguity  in  discourse.     The  contracting  parties  ought 
carefully  to  avoid  it.     Designedly  to  use  it  with  a  view  to 
elude  their  engagements  in  the  sequel,  is  downright  perfidy, 
since  the  faith  of   treaties  obliges   the  contracting   parties 
f  251  1  to  express  their  intentions  clearly  (§  271).     But,  if  an  am- 
biguous expression  has  found  its  way  into  a  deed,  it  is  the 
part  of  the  interpreter  to  clear  up  any  doubt  thereby  occa- 
sioned. 

g  280.  The  The  following  is  the  rule  that  ought  to  direct  the  interpre- 
ruie  for  tation  in  this  as  well  as  in  the  preceding  case :  we  ought 
these  two  always  to  affix  such  meanings  to  the  expressions  as  is  most 
suitable  to  the  subject  or  matter  in  question.  For,  by  a  true 
interpretation,  we  endeavour  to  discover  the  thoughts  of  the 
persons  speaking,  or  of  the  contracting  parties  in  a  treaty. 
Now,  it  ought  to  be  presumed  that  he  who  has  employed  a 
word  which  is  susceptible  of  many  different  significations,  has 
taken  it  in  that  which  agrees  with  his  subject.  In  proportion 
as  he  employs  his  attention  on  the  matter  in  question,  the 
terms  proper  to  express  his  thoughts  present  themselves  to 
his  mind ;  this  equivocal  word  could  therefore  only  present 
itself  in  the  sense  proper  to  express  the  thoughts  of  him  who 
makes  use  of  it,  that  is,  in  the  sense  agreeable  to  the  subject. 
It  would  be  a  feeble  objection  to  this,  to  allege  that  a  man 
sometimes  designedly  employs  equivocal  expressions,  with  a 
view  of  holding  out  ideas  quite  different  from  his  real  thoughts, 
and  that,  in  such  case,  the  sense  which  agrees  with  the  sub- 
ject is  not  that  which  corresponds  with  the  intention  of  the 
person  speaking.  We  have  already  observed,  that,  whenever 
a  man  can  and  ought  to  make  known  his  intention,  we  assume 
for  true  against  him  what  he  has  sufficiently  declared  (§  266). 
And  as  good  faith  ought  to  preside  in  conventions,  they  are 
always  interpreted  on  the  supposition  that  it  actually  did  pre- 
side in  them.  Let  us  illustrate  this  rule  by  examples.  The 
word  day  is  understood  of  the  natural  day,  or  the  time  dur- 
ing which  the  sun  affords  us  his  light,  and  of  the  civil  day,  or 
the  space  of  twenty-four  hours.  When  it  is  used  in  a  con- 
vention to  point  out  a  space  of  time,  the  subject  itself  mani- 
festly shows  that  the  parties  mean  the  civil  day,  or  the  term 
of  twenty-four  hours.  It  was  therefore  a  pitiful  subterfuge, 
or  rather  a  notorious  perfidy,  in  Cleomenes,  when,  having 
concluded  a  truce  of  some  days  with  the  people  of  Argos, 
and  finding  them  asleep  on  the  third  night,  in  reliance  on  the 
faith  of  the  treaty,  he  killed  a  part  of  their  number,  and 
made  the  rest  prisoners,  alleging  that  the  nights  were  not 

350 


OF  THE   INTERPRETATION   OF  TREATIES.  251 

comprehended  in  the  truce.*  The  word  steel  may  be  under-  BOOK  n. 
stood  of  the  metal  itself,  or  of  certain  instruments  made  of  CHAP-  XYn- 
it : — in  a  convention  which  stipulates  that  the  enemy  shall  lay 
down  their  steel,  it  evidently  means  their  weapons:  where- 
fore, Pericles,  in  the  example  related  above  (§  233),  gave  a 
fraudulent  interpretation  to  those  words,  since  it  was  con- 
trary to  what  the  nature  of  the  subject  manifestly  pointed 
out.  Q.  Fabius  Labeo,  of  whom  we  made  mention  in  the 
same  section,  showed  equal  dishonesty  in  the  interpretation 
of  his  treaty  with  Antiochus  ;  for,  a  sovereign  who  stipulates 
that  the  half  of  his  fleet  or  of  his  vessels  shall  be  restored  to  [  252  ] 
him,  undoubtedly  means  that  the  other  party  shall  restore  to 
him  vessels  which  he  can  make  use  of,  and  not  the  half  of 
each  vessel  when  sawed  into  two.  Pericles  and  Fabius  are 
also  condemned  by  the  rule  established  above  (§  274),  which 
forbids  us  to  wrest  the  sense  of  the  words  contrary  to  the 
evident  intention  of  the  contracting  parties. 

If  any  one  of  those  expressions  which  are  susceptible  of  dif-  \  281.   Not 
ferent  significations  occurs  more  than  once  in  the  same  piece,  necessair  to 
ive  cannot  make  it  a  rule  to  take  it  everywhere  in  the  same ^aa.™™ 
signification.     For,  we  must,  conformably  to  the  preceding  senso  every- 
rule,  take  such  expression,  in  each  article,  according  as  the  where  in 
subject  requires, — pro  substrata  materia,  as  the  masters  of  the the  same 
art  say.     The  word  day,  for  instance,  has  two  significations,  ee 
as  we  have  just  observed  (§  280).     If  therefore  it  be  said  in 
a  convention,  that  there  shall  be  a  truce  of  fifty  days,  on  con- 
dition that  commissioners  from  both  parties  shall,  during  eight 
successive  days,  jointly  endeavour  to  adjust  the  dispute, — 
the  fifty  days  of  the  truce  are  civil  days  of  twenty-four  hours  ; 
but  it  would  be  absurd  to  understand  them  in  the  same  sense 
in  the  second  article,  and  to  pretend  that  the  commissioners 
should  labour  eight  days  and  nights  without  intermission. 

Every  interpretation  that  leads  to  an  absurdity  ought  to  be  %  282.   We 
rejected  ;  or,  in  other  words,  we  should  not  give  to  any  piece  °u&ht  to  re- 
a  meaning  from  which  any  absurd  consequences  would  follow,  ^^retL 
but  must  interpret  it  in  such  a  manner  as  to  avoid  absurdity.  tionThat*" 
As  it  is  not  to  be  presumed  that  any  one  means  what  is  a  b- leads  to  an 
surd,  it  cannot  be  supposed  that  the  person  speaking  intended  ^urdUy. 
that  his  words  should  be  understood  in  a  manner  from  which 
an  absurdity  would  follow.     Neither  is  it  allowable  to  pre- 
sume that  he  meant  to  indulge  a  sportive  levity  in  a  serious 
deed :  for  what  is  shameful  and  unlawful  is  not  to  be  pre- 
sumed.   We  call  absurd  not  only  what  is  physically  impossible, 
but  what  is  morally  so, — that  is  to  say,  what  is  so  contrary 
to  reason  that  it  cannot  be  attributed  to  a  man  in  his  right 
senses.     Those  fanatic  Jews  who  scrupled  to  defend  them- 
selves when  the  enemy  attacked  them  on  the  Sabbath  day, 
gave  an  absurd  interpretation  to  the  fourth  commandment, 

*  Puffendorf,  lib.  v.  cap.  xii.  J  7. 

351 


252  OF   THE   INTERPRETATION    OF   TREATIES. 

BOOK  n.  Why  did  they  not  also  abstain  from  dressing,  walking,  and 
CHAP,  xvir.  eating  v  These  also  are  "tvorks,"  if  the  term  be  strained  to 
its  utmost  rigour.  It  is  said  that  a  man  in  England  married 
three  wives,  in  order  that  he  might  not  be  subject  to  the  pe- 
nalty of  the  law  which  forbids  marrying  two.  This  is  doubt- 
less a  popular  tale,  invented  with  a  view  to  ridicule  the  ex- 
treme circumspection  of  the  English,  who  will  not  allow  the 
smallest  departure  from  the  letter  in  the  application  of  the 
law.  That  wise  and  free  people  have  too  often  seen,  by  the 
experience  of  other  nations,  that  the  laws  are  no  longer  a 
firm  barrier  and  secure  defence,  when  once  the  executive 
power  is  allowed  to  interpret  them  at  pleasure.  But  surely 
they  do  not  mean  that  the  letter  of  the  law  should  on  any 
occasion  be  strained  to  a  sense  that  is  manifestly  absurd. 

The  rule  we  have  just  mentioned  is  absolutely  necessary, 
and  ought  to  be  followed,  even  when  the  text  of  the  law  01 
[  253  ]  treaty  does  not,  considered  in  itself,  present  either  obscurity 
or  ambiguity  in  the  language.  For,  it  must  be  observed,  that 
the  uncertainty  of  the  sense  we  are  to  give  to  a  law  or  a  treaty, 
does  not  solely  proceed  from  the  obscurity  or  other  defect  in 
the  expression,  but  also  from  the  limited  nature  of  the  human 
mind,  which  cannot  foresee  all  cases  and  circumstances,  nor 
take  in  at  one  view  all  the  consequences  of  what  is  decreed 
or  promised, — and,  finally,  from  the  impossibility  of  entering 
into  that  immense  detail.  Laws  and  treaties  can  only  be 
worded  in  a  general  manner ;  and  it  is  the  interpreter's  pro- 
vince to  apply  them  to  particular  cases,  conformably  to  the 
intention  of  the  legislature,  or  of  the  contracting  powers. 
Now,  we  are  not  in  any  case  to  presume  that  it  was  their  in- 
tention to  establish  an  absurdity :  and  therefore,  when  their 
expressions,  taken  in  their  proper  and  ordinary  meaning, 
would  lead  to  absurd  consequences,  it  becomes  necessary  to 
deviate  from  that  meaning,  just  so  far  as  is  sufficient  to  avoid 
absurdity.  Let  us  suppose  a  captain  has  received  orders  to 
advance  in  a  right  line  with  his  troops  to  a  certain  post :  he 
finds  a  precipice  in  his  way:  surely  his  orders  do  not  oblige 
him  to  leap  headlong  down :  he  must,  therefore,  deviate  from 
the  right  line,  so  far  as  is  necessary  to  avoid  the  precipice, 
but  no  further. 

The  application  of  the  rule  is  more  easy,  when  the  expres- 
sions of  the  law  or  of  the  treaty  are  susceptible  of  two  differ- 
ent meanings.  In  this  case  we  adopt  without  hesitation  that 
meaning  from  which  no  absurdity  follows.  In  the  same  manner, 
when  the  expression  is  such  that  we  may  give  it  a  figurative 
sense,  we  ought  doubtless  to  do  this,  when  it  becomes  neces- 
sary, in  order  to  avoid  falling  into  an  absurdity. 

\  283.   And     It  is  not  to  be  presumed  that  sensible  persons,  in  treating 
that  which    together,  or  transacting  any  other  serious  business,  meant 
•ct  Mil  and  *^at  t^ie  result  °f  t^e^r  proceedings  should  prove  a  mere  nul- 
lity.    The  interpretation,  therefore,  which  would  render  a 


OF  THE  INTERPRETATION   OF  TREATIES.  253 

treaty  null  and  inefficient,  cannot  be  admitted.    We  may  con-    BOOK  n. 
sider  this  rule  as  a  branch  of  the  preceding ;  for,  it  is  a  kind  CHAP-  xyn- 
of  absurdity  to  suppose  that  the  very  terms  of  a  deed  should  void  of  ef* 
reduce  it  to  mean  nothing.    It  ought  to  be  interpreted  in  such fect* 
a  manner  as  that  it  may  have  its  effect,  and  not  prove  vain 
and  nugatory :  and  in  this  interpretation  we  proceed  accord- 
ing to  the  mode  pointed  out  in  the  foregoing  section.     In 
both  cases,  as  in  all  interpretations,  the  question  is,  to  give 
the  words  that  sense  which  ought  to  be  presumed  most  con- 
formable to  the  intention  of  the  parties  speaking.     If  many 
different  interpretations  present  themselves,  by  which  we  can 
conveniently  avoid  construing  the  deed  into  a  nullity  or  an 
absurdity,  we  are  to  prefer  that  which  appears  the  most  agree- 
able to  the  intention  of  those  who  framed  the  deed :  the  par- 
ticular circumstances  of  the  case,  aided  by  other  rules  of  in- 
terpretation, will  serve  to  point  it  out.     Thucydides  relates,* 
that  the  Athenians,  after  having  promised  to  retire  from  the  [  254  ] 
territories  of  the  Boeotians,  claimed  a  right  to  remain  in  the 
country  under  pretence  that  the  lands  actually  occupied  by 
their  army  did  not  belong  to  the  Boeotians ; — a  ridiculous 
quibble,  since,  by  giving  that  sense  to  the  treaty,  they  re- 
duced it  to  nothing,  or  rather  to  a  puerile  play.     The  terri- 
tories of  the  BoBotians  should  evidently  have  been  construed 
to  mean  all  that  was  comprised  within  their  former  boundaries, 
without  excepting  what  the  enemy  had  seized  during  the  war. 

If  he  who  has  expressed  himself  in  an  obscure  or  equivocal  £  284.    Ob- 
manner  has  spoken  elsewhere  more  clearly  on  the  same  sub-scure.exv 
ject,  he  is  the  best  interpreter  of  his  own  words.      We  ought^6^^0^" 
to  interpret   his  obscure  or  equivocal  expressions  in  such  a  by  others 
manner  that  they  may  agree  with  those  clear  and  unequivocal™™  clear 
terms  which  he  has  elsewhere  used,  either  in  the  same  deed, in  the  same 
or  on  some  other  similar  occasion.     In  fact,  while  we  have  no  aut  or' 
proof  that  a  man  has  changed  his  mind  or  manner  of  think- 
ing, it  is  presumed  that  his  thoughts  have  been  the  same  on 
similar  occasions ;  so  that,  if  he  has  anywhere  clearly  shown 
his  intention  with  respect  to  a  certain  thing,  we  ought  to  affix 
the  same  meaning  to  what  he  has  elsewhere  obscurely  said 
on  the  same  subject.     Let  us  suppose,  for  instance,  that  two 
allies  have  reciprocally  promised  each  other,  in  case  of  ne- 
cessity, the  assistance  of  ten  thousand  foot  soldiers,  who  are 
to  be  supported  at  the  expense  of  the  party  that  sends  them, 
and  that,  by  a  posterior  treaty,  they  agree  that  the  number 
of  the  auxiliary  troops  shall  be  fifteen  thousand,  without  men- 
tioning their  support :  the  obscurity  or  uncertainty  which  re- 
mains in  this  article  of  the  new  treaty,  is  dissipated  by  the 
clear  and  express  stipulation  contained  in  the  former  one. 
As  the  allies  dp  not  give  any  indication  that  they  have 
changed  their  minds  with  respect  to  the  support  of  the  auxi- 

*  Lib.  iv.  cap.  xcviii. 
45  2  E  2  353 


254  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  n.  liary  troops,  we  are  not  to  presume  any  such  change ;  and 
CHAP.  xvn.  tnose  fifteen  thousand  men  are  to  be  supported  as  the  ten 
thousand  promised  in  the  first  treaty.  The  same  holds  good, 
and  with  much  stronger  reason,  when  there  is  question  of 
two  articles  of  the  same  treaty, — when,  for  example,  a  prince 
promises  to  furnish  ten  thousand  men,  paid  and  maintained 
at  his  own  expense,  for  the  defence  of  the  states  of  his  ally, — 
and  in  another  article,  only  promises  four  thousand  men,  in 
case  that  ally  be  engaged  in  an  offensive  war. 

g  285.    in-       It  frequently  happens,  that,  with  a  view  to  conciseness, 
terpretation  pe0pje  express  imperfectly,  and  with  some  degree  of  obscu- 
thTconne^.  r^v>  things  which  they  suppose  to  be  sufficiently  elucidated 
tion  of  the  by  the  preceding  matter,  or  which  they  intend  to  explain  in 
discourse,     the  sequel :    and  moreover,  words  and  expressions   have  a 
different  force,  sometimes  even  a  quite  different  signification, 
according  to  the  occasion,  their  connection,  and  their  rela- 
tion to  other  words.     The  connection  and  train  of  the  dis- 
course is  therefore  another   source  of  interpretation.      We 
must  consider  the  whole  discourse  together,  in  order  perfectly 
to  conceive  the  sense  of  it,  and  to  give  to  each  expression,  not 
so  much  the  signification  which  it  may  individually  admit 
of,  as  that  which  it  ought  to  have  from  the  context  and  spirit 
[  255  ]  of  the  discourse.     Such  is  the  maxim  of  the  Roman  law, 
Incivile  est,  nisi  totd  lege  perspectd,  und  aliqud  particuld 
ejus  propositd,  judicare,  vel  respondere.* 

$  286.    in-       The  very  connection  and  relation  of  the  things  in  ques- 
terpretation  tion  help  also  to  discover  and  establish  the  true  sense  of  a 
drawnnf™"  treaty,  or  of  any  other  piece.     The  interpretation  ought  to 
tioVand^e-  ^e  ma^e  *n  8UC^  a  manner,  that  all  the  parts  may  appear 
lation  of       consonant  to  each  other, — that  what  follows  may  agree  with 
the  things    what  preceded, — unless  it  evidently  appear,  that,  by  the  subse- 
themseives.  quent  clauses,  the  parties  intended  to  make  some  alteration 
in  the  preceding  ones.     For  it  is  to  be  presumed  that  the 
authors  of  a  deed  had  a  uniform  and  steady  train  of  think- 
ing,— that  they  did  not  aim  at  inconsistencies  and  contradic- 
tions,— but  rather  that  they  intended  to  explain  one  thing 
by  another, — and,  in  a  word,  that  one  and  the  same  spirit 
reigns  throughout  the  same  production  or  the  same  treaty. 
Let  us  render  this  more  plain  by  an  example.     A  treaty  of 
alliance  declares,  that,  in  case  one  of  the  allies  be  attacked, 
each  of  the  others  shall  assist  him  with  a  body  of  ten  thou- 
sand foot,  paid  and  supported;  and  in  another  article,  it  is 
said  that  the  ally  who  is  attacked  shall  be  at  liberty  to  de- 
mand the  promised  assistance  in  cavalry  rather  than  in  in- 
fantry.    Here  we  see,  that,  in  the  first  article,  the  allies  have 
determined  the  quantum  of  the  succour,  and  its  value, — that 
of  ten  thousand  foot ;  and,  in  the  latter  article,  without  ap- 
pearing to  intend  any  variation  in  the  value  or  number,  they 

*  Digest,  lib.  i.  tit  iii.  De  Legibus,  leg.  24. 
354 


OF   THE   INTERPRETATION   OF   TREATIES.  255 

the  nature  of  the  succours  to  the  choice  of  the  party  BOOK  «. 
who  may  stand  in  need  of  them.  If,  therefore,  the  ally  who  CHAP-  XYIT- 
is  attacked  calls  upon  the  others  for  cavalry,  they  will  give 
him,  according  to  the  established  proportion,  an  equivalent 
to  ten  thousand  foot.  But  if  it  appears  that  the  intention 
of  the  latter  article  was,  that  the  promised  succours  should 
in  certain  cases  be  augmented, — if,  for  instance,  it  be  said, 
that,  in  case  one  of  the  allies  happen  to  be  attacked  by  an 
enemy  of  considerably  superior  strength,  and  more  powerful 
in  cavalry,  the  succours  should  be  furnished  in  cavalry,  and 
not  in  infantry, — it  appears  that,  in  this  case,  the  promised 
assistance  ought  to  be  ten  thousand  horse. 

As  two  articles  in  one  and  the  same  treaty  may  bear  rela- 
tion to  each  other,  two  different  treaties  may  in  like  manner 
have  a  relative  connection  ;  and,  in  this  case,  each  serves  to 
explain  the  other.  For  instance,  one  of  the  contracting  par- 
ties has,  in  consideration  of  a  certain  object,  promised  to 
deliver  to  the  other  ten  thousand  sacks  of  wheat.  By  a  sub- 
sequent agreement,  it  is  determined,  that,  instead  of  wheat, 
he  shall  give  him  oats.  The  quantity  of  oats  is  not  ex- 
pressed ;  but  it  is  determined  by  comparing  the  second  con- 
vention with  the  first.  If  there  be  no  circumstance  to  prove 
that  it  was  the  intention  of  the  parties,  in  the  second  agree- 
ment,  to  diminish  the  value  of  what  was  to  be  delivered,  we 
are  to  understand  a  quantity  of  oats  proportioned  to  the 
price  of  ten  thousand  sacks  of  wheat ;  but  if  it  evidently  [  256  ] 
appears  from  the  circumstances  and  motives  of  the  second 
convention,  that  it  was  their  intention  to  reduce  the  value  of 
what  was  due  under  the  former  agreement, — in  this  case,  ten 
thousand  sacks  of  oats  are  to  be  substituted  in  lieu  of  the 
ten  thousand  sacks  of  wheat. 

The  reason  of  the  law,  or  of  the  treaty, — that  is  to  say,  g  287.  in- 
the  motive  which  led  to  the  making  of  it,  and  the  object  in  terpretation 
contemplation  at  the  time, — is  the  most  certain  clue  to  lead  f<>unded  on 
us  to  the  discovery  of  its  true  meaning ;  and  great  attention 
should  be  paid  to  this  circumstance,  whenever  there  is  ques- 
tion either  of  explaining  an  obscure,  ambiguous,  indetermi- 
nate passage  in  a  law  or  treaty,  or  of  applying  it  to  a  parti- 
cular case.  When  once  we  certainly  know  the  reason  which 
alone  has  determined  the  will  of  the  person  speaking,  we 
ought  to  interpret  and  apply  his  words  in  a  manner  suitable 
to  that  reason  alone.  Otherwise  he  will  be  made  to  speak 
and  act  contrary  to  his  intention,  and  in  opposition  to  his 
own  views.  Pursuant  to  this  rule,  a  prince,  who,  on  grant- 
ing his  daughter  in  marriage,  has  promised  to  assist  his  in- 
tended son-in-law  in  all  his  wars,  is  not  bound  to  give  him 
any  assistance  if  the  marriage  does  not  take  place. 

But  we  ought  to  be  very  certain  that  we  know  the  true 
and  only  reason  of  the  law,  the  promise,  or  the  treaty.  In 
matters  of  this  nature,  it  is  not  allowable  to  indulge  in  vague 


256  OF  THE  INTERPRETATION  OF  TREATIES. 


BOOK  n. 
CHAP.  XYI 


and  uncertain  conjectures,  and  to  suppose  reasons  and  views 
YII.  wjiere  there  are  none  certainly  known.  If  the  piece  in  ques- 
tion is  in  itself  obscure,  —  if,  in  order  to  discover  its  meaning, 
we  have  no  other  resource  than  the  investigation  of  the  au- 
thor's views,  or  the  motives  of  the  deed,  —  we  may  then  have 
recourse  to  conjecture,  and,  in  default  of  absolute  certainty, 
adopt  as  the  true  meaning,  thut  which  has  the  greatest  de- 
gree of  probability  on  its  side.  But  it  is  a  dangerous  abuse, 
to  go,  without  necessity,  in  search  of  motives  and  uncertain 
views,  in  order  to  wrest,  restrict,  or  extend  the  meaning  of  a 
deed  which  is  of  itself  sufficiently  clear,  and  carries  no  ab- 
surdity on  the  face  of  it.  Such  a  procedure  is  a  violation 
of  that  incontestable  maxim,  —  that  it  is  not  allowable  to  in- 
terpret what  has  no  need  of  interpretation  (§  263).  Much 
less  are  we  allowed,  —  when  the  author  of  a  piece  has  in  the 
piece  itself  declared  his  reasons  and  motives,  —  to  attribute 
to  him  some  secret  reason,  which  may  authorize  us  in  giving 
an  interpretation  repugnant  to  the  natural  meaning  of  the 
expressions.  Even  though  he  should  have  entertained  the 
views  which  we  attribute  to  him,  —  yet,  if  he  has  concealed 
them,  and  announced  different  ones,  it  is  upon  the  latter 
alone  that  we  must  build  our  interpretation,  and  not  upon 
those  which  the  author  has  not  expressed  :  —  we  assume,  %as 
true,  against  him,  what  he  has  sufficiently  declared  (§  266).' 
g  288.  We  ought  to  be  the  more  circumspect  in  this  kind  of  inter- 

Where         pretation,  as  it  frequently  happens  that  several  motives  con- 
™n°yhlve~    cur  to  determine  the  will  of  the  party  who  speaks  in  a  law  or 
concurred     a   promise.     Perhaps   the    combined  influence  of   all  those 
to  determine  motives  was  necessary  in  order  to  determine  his  will  ;  —  per- 
the  will.       napS  each  one  Of  them,  taken  individually,  would  have  been 
[  257  ]  sufficient  to  produce  that  effect.     In  the  former  case,  if  ive  are 
perfectly  certain  that  it  was  only  in  consideration  of  several 
concurrent  reasons  and  motives  that  the  legislature  or  the  con- 
tracting parties  consented  to  the  law  or  the  contract,  the  inter- 
pretation and   application  ought  to  be  made  in  a  manner 
agreeable  to  all  those  concurrent  reasons,  and  none  of  them 
must  be  overlooked.     But  in  the  latter  case,  when  it  is  evi- 
dent that  each  of  the  reasons  which  have  concurred  in  deter- 
mining the  will  was  sufficient  to  produce  that  effect,  so  that 
the  author  of  the  piece  in  question  would,  by  each  of  the  rea- 
sons separately  considered,  have  been  induced  to  form  the 
same  determination  which  he  has  formed  upon  all  the  reasons 
taken  in  the  aggregate,  his  words  must  be  so  interpreted  and 
applied,  as  to  make  them  accord  with  each  of  those  reasons 
taken  individually.     Suppose  a  prince  has  promised  certain 
advantages  to  all  foreign  Protestants  and  artisans  who  will 
come  and  settle  in  his  estates  :  if  that  prince  is  in  no  want  of 
subjects,  but  of  artisans  only,  —  and  if,  on  the  other  hand,  it 
appears  that  he  does  not  choose  to  have  any  other  subjects 
than  Protestants,  —  his  promise  must  be  so  interpreted,  as  to 

356 


OF  THE   INTERPRETATION   OF   TREATIES.  257 

relate  only  to  such  foreigners  as  unite  those  two  characters,    BOOK  n. 
of  Protestants  and  artisans.     But  if  it  is  evident  that  this  CHAP.  XVH. 
prince  wants  to  people  his  country,  and  that,  although  he 
would  prefer  Protestant  subjects  to  others,  he  has  in  particu- 
lar so  great  a  want  of  artisans,  that  he  would  gladly  receive 
them,  of  whatever  religion  they  be, — his  words  should  be 
taken  in  a  disjunctive  sense,  so  that  it  will,  be  sufficient  to  be 
either  a  Protestant  or  an  artisan,  in  order  to  enjoy  the  pro- 
mised advantages. 

To  avoid  tedious  and  complex  circumlocution,  we  shall  make  §289.  What 
use  of  the  term,  "sufficient  reason  for  an  act  of  the  will,"  to  constitutes 
express  whatever  has  produced  that  act, — whatever  has  de-  reasorTfor 
termined  the  will  on  a  particular  occasion,  whether  the  will  an  act  of  the 
has  been  determined  by  a  single  reason,  or  by  many  concur-  will, 
rent  reasons.     That  sufficient  reason,  then,  will  be  sometimes 
found  to  consist  in  a  combination  of  many  different  reasons, 
so  that,  where  a  single  one  of  those  reasons  is  wanting,  the 
sufficient  reason  no  longer  exists :  and  in  those  cases  where 
we  say  that  many  motives,  many  reasons,  have  concurred  to 
determine  the  will,  yet  so  as  that  each  in  particular  would 
have  been  alone  capable  of  producing  the  same  effect, — there 
will  then  be  many  sufficient  reasons  for  producing  one  single 
act  of  the  will.     Of  this  we  see  daily  instances.     A  prince, 
for  example,  declares  war  for  three  or  four  injuries  received, 
each  of  which  would  have  been  sufficient  to  have  produced 
the  declaration  of  war. 

The  consideration  of  the  reason  of  a  law  or  promise  not  §290.    Ex- 
only  serves  to  explain  the  obscure  or  ambiguous  expressions  tensive  in- 
which  occur  in  the  piece,  but  also  to  exteod  or  restrict  its  torpretation 
several  provisions  independently  of  the  expressions,  and  in  the  reason 
conformity  to  the  intention  and  views  of  the  legislature  or  the  of  the  act. 
contracting  parties,  rather  than  to  their  words.     For,  accord-  [  258  ] 
ing  to  the  remark  of  Cicero,*  the  language,  invented  to 
explain  the  will,  ought  not  to  hinder  its  effect.      When  the 
sufficient  and  only  reason  of  a  provision,  either  in  a  law  or  a 
promise,  is  perfectly  certain  and  well  understood,  we  extend 
that  provision  to  cases  to  which  the  same  reason  is  applicable, 
although  they  be  not  comprised  within  the  signification  of  the 
terms.     This  is  what  is  called  extensive  interpretation.     It  is 
commonly  said,  that  we  ought  to  adhere  rather  to  the  spirit 
than  to  the  letter.    Thus,  the  Mohammedans  justly  extend  the 
prohibition  of  wine,  in  the  Koran,  to  all  intoxicating  liquors ; 
that  dangerous  quality  being  the  only  reason  that  could  in- 
duce their  legislator  to  prohibit  the  use  of  wine.     Thus,  also, 
if,  at  the  time  when  there  were  no  other  fortifications  than 
walls,  it  was  agreed  not  to  enclose  a  certain  town  with  walls, 

*  Quid  1  verbis  satis  hoc  cautum  mur.  Quia  non  potest,  verba  reperta 
erat1?  Minime.  Qua  res  igitur  valuit  7  sunt,  non  quae  impedirent,  sed  qua  in- 
Voluntas :  quse  si,  tacitis  nobis,  intel-  dicarent  voluntatem.  Cicer.  Orat  pro 
ligi  posset,  verbis  omnino  non  utere-  Csecina. 

367 


258  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  n.    it  would  not  be  allowable  to  fortify  it  with  fosses  and  ram- 
C.HAP.  xvn'  parts,  since  the  only  view  of  the   treaty  evidently  was,  to 
prevent  its  being  converted  into  a  fortified  place. 

But  we  should  here  observe  the  same  caution  above  recom- 
mended (§  287),  and  even  still  greater,  since  the  question  re- 
lates to  an  application  in  no  wise  authorized  by  the  terms  of 
the  deed.  We  ought  to  be  thoroughly  convinced  that  we 
know  the  true  and  only  reason  of  the  law  or  the  promise,  and 
that  the  author  has  taken  it  in  the  same  latitude  which  must 
be  given  to  it  in  order  to  make  it  reach  the  case  to  which  we 
mean  to  extend  the  law  or  promise  in  question.  As  to  the 
rest,  I  do  not  here  forget  what  I  have  said  above  (§  268), 
that  the  true  sense  of  a  promise  is  not  only  that  which  the 
person  promising  had  in  his  mind,  but  also  that  which  has 
been  sufficiently  declared, — that  which  both  the  contracting 
parties  must  reasonably  have  understood.  In  like  manner, 
the  true  reason  of  a  promise  is  that  which  the  contract,  the 
nature  of  the  things  in  question,  and  other  circumstances, 
sufficiently  indicate :  it  would  be  useless  and  ridiculous  to 
allege  any  by-views  which  the  person  might  have  secretly 
entertained  in  his  own  mind. 

g  291.  The  rule  just  laid  down  serves  also  to  defeat  the  pretexts 

Frauds  and  pitiful  evasions  of  those  who  endeavour  to  elude  laws  or 
*iud1Df  *°  *rea*^es-  Grood-faith  adheres  to  the  intention  :  fraud  insists 
or  promises.  on  ^e  terms,  when  it  thinks  that  they  can  furnish  a  cloak  for 
its  prevarications.  The  isle  of  Pharos  near  Alexandria  was, 
with  other  islands,  tributary  to  the  Rhodians.  The  latter 
having  sent  collectors  to  levy  the  tribute,  the  queen  of  Egypt 
amused  them  for  some  time  at  her  court,  using  in  the  mean 
while  every  possible  exertion  to  join  Pharos  to  the  main  land 
by  means  of  moles  :  after  which  she  laughed  at  the  Rhodians, 
and  sent  them  a  message,  intimating  that  it  was  very  unrea- 
t  sonable  in  them  to  pretend  to  levy  on  the  main  land  a  tribute 
which  they  had  no  title  to  demand  except  from  the  islands.* 
[  259  ]  There  existed  a  law  which  forbade  the  Corinthians  to  give  ves- 
sels to  the  Athenians : — they  sold  them  a  number  at  five 
drachmae  each.f  The  following  was  an  expedient  worthy  of 
Tiberius :  custom  not  permitting  him  to  cause  a  virgin  to  be 
strangled,  he  ordered  the  executioner  first  to  deflower  the 
young  daughter  of  Sejanus,  and  then  to  strangle  her.J  To 
violate  the  spirit  of  the  law  while  we  pretend  to  respect  the 
letter,  is  a  fraud  no  less  criminal  than  an  open  violation  of 
it :  it  is  equally  repugnant  to  the  intention  of  the  law-maker, 
and  only  evinces  a  more  artful  and  deliberate  villany  in  the 
person  who  is  guilty  of  it. 

Restrictive  interpretation,  which  is  the  reverse  of  extensive 

*  Puffendorf,  lib.  v.cap.xii.  §18.  He  f  Puffend.  ibid.  Herodotus,  lib.  ri. 
quotes  Ammianus  Marcellinus,  lib.  xxii.  Five  drachmae  amounted  to  little  more 
cap.  xvi.  than  three  shillings  sterling. 

t  Tacit.  Annal.  lib.  v.  9. 
358 


OF   THE   INTERPRETATION   OF   TREATIES.  259 

interpretation,  is  founded  on  the  same  principle.     As  we  ex-    BOOK  ir. 

tend  a  clause  to  those  cases,  which,  though  not  comprised  CHAP-  XYir- 

within  the  meaning  of  the  terms,  are  nevertheless  comprised  §  292.  Re- 

in the  intention  of  that  clause,  and  included  in  the  reasons  strictive  in- 

that  produced  it,  —  in  like  manner,  we  restrict  a  law  or  a  pro-  terpretation. 

mise,  contrary  to  the  literal  signification  of  the  terms,  —  our 

judgment  being  directed  by  the  reason  of  that  law  or  that 

promise  :  that  is  to  say,  if  a  case  occurs,  to  which  the  well 

known  reason  of  a  law  or  promise  is  utterly  inapplicable,  that 

case  ought  to  be  excepted,  although,  if  we  were  barely  to  con- 

sider the  meaning  of  the  terms,  it  should  seem  to  fall  within 

the  purvieio  of  the  law  or  promise.     It  is  impossible  to  think 

of  every  thing,  to  foresee  every  thing,  and  to  express  every 

thing  :  it  is   sufficient  to  enounce  certain  things  in  such  a 

manner  as  to  make  known  our  thoughts  concerning  things  of 

which  we  do  not  speak  :  and,  as  Seneca  the  rhetorician  says,* 

there  are  exceptions  so  clear,  that  it  is  unnecessary  to  express 

them.     The  law  condemns  to  suffer  death  whoever  strikes 

his  father:  shall  we  punish  him  who  has  shaken  and  struck 

his  father,  to  recover  him  from  a  lethargic  stupor?     Shall 

we  punish  a  young  child,  or  a  man  in  a  delirium,  who  has 

lifted  his  hand  against  the  author  of  his  life  ?     In  the  former 

case  the  reason  of  the  law  does  not  hold  good  ;  and  to  the 

two  latter  it  is  inapplicable.     We  are  bound  to  restore  what 

is  intrusted  to  us  :  shall  I  restore  what  a  robber  has  intrusted 

to  me,  at  the  time  when  the  true  proprietor  makes  himself 

known  to  me,  and  demands  his  property  ?     A  man  has  left 

his  sword  with  me  :  shall  I  restore  it  to  him,  when,  in  a  trans- 

port of  fury,  he  demands  it  for  the  purpose  of  killing  an  inno- 

cent person  ? 

We  have  recourse  to  restrictive  interpretation,  in  order  to  §  293.  Its 
avoid  falling  into  absurdities  (see  §  282).     A  man  bequeaths  use,  in  order 
his  house  to  one,  and  to  another  his  garden,  the  only  entrance  *°  aT°ld  *¥'" 
into  which  is  through  the  house.     It  would  be  absurd  to  sup-  s 


pose   that   he  had  bequeathed  to  the  latter  a  garden   into  into  what  is 
which  he  could  not  enter  :  we  must  therefore  restrict   the  unlawful. 
pure  and  simple  donation  of  the  house,  and  understand  that 
it  was  given  only  upon  condition  of  allowing  a  passage  to  the  [  260  ] 
garden.     The  same  mode  of  interpretation  is  to  be  adopted, 
whenever  a  case  occurs,  in  which  the  law  or  the  treaty,  if  in- 
terpreted according  to  the  strict  meaning  of  the  terms,  would 
lead  to  something  unlawful.     On  such  an  occasion,  the  case 
in  question  is  to  be  excepted,  since  nobody  can  ordain  or 
promise  what  is  unlawful.     For  this  reason,  though  assist- 
ance has  been  promised  to  an  ally  in  all  his  wars,  no  assist- 
ance ought  to  be  given  him  when  he  undertakes  one  that  is 
manifestly  unjust. 

When  a  case  arises  in  which  it  would  be  too  severe  and  too 

*  lab.  iv.  Declam.  xxvii. 

359 


260  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  ii.  prejudicial  to  any  one  to  interpret  a  law  or  a  promise  accord- 
CHAP.  XYH.  jng  to  the  rigour  of  the  terms,  a  restrictive  interpretation 
§  294.  Or  is  then  also  used,  and  we  except  the  case  in  question,  agree- 
what  is  too  ably  to  the  intention  of  the  legislature,  or  of  him  who  made 
burden*""1  *^e  Prom^se  :  f°r  *ne  legislature  intends  only  what  is  just 
*om™~  and  equitable ;  and,  in  contracts,  no  one  can  enter  into  such 
engagements  in  favour  of  another,  as  shall  essentially  super- 
sede the  duty  he  owes  to  himself.  It  is  then  presumed  with 
reason,  that  neither  the  legislature  nor  the  contracting  parties 
have  intended  to  extend  their  regulations  to  cases  of  this 
nature,  and  that  they  themselves,  if  personally  present,  would 
except  them.  A  prince  is  no  longer  obliged  to  send  succours 
to  his  allies,  when  he  himself  is  attacked,  and  has  need  of  all 
his  forces  for  his  own  defence.  He  may  also,  without  the 
slightest  imputation  of  perfidy,  abandon  an  alliance,  when, 
through  the  ill  success  of  the  war,  he  sees  his  state  threatened 
with  impending  ruin  if  he  does  not  immediately  treat  with 
the  enemy.  Thus,  towards  the  end  of  the  last  century,  Victor 
Amadeus,  duke  of  Savoy,  found  himself  under  the  necessity 
of  separating  from  his  allies,  and  of  receiving  law  from  France, 
to  avoid  losing  his  states.  The  king  his  son  would  have  had 
good  reasons  to  justify  a  separate  peace  in  the  year  1745 ; 
but  upheld  by  his  courage,  and  animated  by  just  views  of  his 
true  interest,  he  embraced  the  generous  resolution  to  struggle 
against  an  extremity  which  might  have  dispensed  with  his 
persisting  in  his  engagements. 

§  295.  How      We  have  said  above  (§  280),  that  we  should  take  the  ex- 
it ought  to   preggiong  jn  the  sense  that  agrees  with  the  subject  or  the 
signification  matter.     Restrictive  interpretation  is  also  directed  by  this 
agreeably  to  rule.     If  the  subject  or  the  matter  treated  of  will  not  allow 
the  subject,  that  the  terms  of  a  clause  should  be  taken  in  their  full  extent, 
we  should  limit  the  sense  according  as  the  subject  requires. 
Let  us  suppose  that  the  custom  of  a  particular  country  con- 
fines the  entail  of  fiefs  to  the  male  line  properly  so  called : 
if  an  act  of  enfeoffment  in  that  country  declares  that  the  fief 
is  given  to  a  person  for  himself  and  his  male  descendants, 
the  sense  of  these  last  words  must  be  restricted  to  the  males 
descending  from  males ;  for  the  subject  will  not  admit  of  our 
understanding  them  also  of  males  who  are  the  issue  of  females, 
though  they  are  reckoned  among  the  male  descendants  of  the 
first  possessor. 

g  296.  How  The  following  question  has  been  proposed  and  debated : 
&  change  «  Whether  promises  include  a  tacit  condition  of  the  state  of 
fntheTtate  a^rs  continuing  the  same, — or  whether  a  change  happen- 
of  things  ing  m  the  state  of  affairs  can  create  an  exception  to  the  pro- 
may  form  mise,  and  even  render  it  void  ?"  The  principle  derived  from 
an  excep-  the  reason  of  the  promise  must  solve  the  question.  If  it  be 
tion*  certain  and  manifest  that  the  consideration  of  the  present 

state  of  things  was  one  of  the  reasons  which  occasioned  the 
promise, — that  the  promise  was  made  in  consideration  or  in 


OF   THE   INTERPRETATION    OF    TREATIES.  261 

consequence  of  that  state  of  things, — it  depends  on  the  pre-  BOOK  n. 
servation  of  things  in  the  same  state.  This  is  evident,  since  CHAr-  xvn- 
the  promise  was  made  only  upon  that  supposition.  When 
therefore  that  state  of  things  which  was  essential  to  the  pro- 
mise, and  without  which  it  certainly  would  not  have  been 
made,  happens  to  be  changed,  the  promise  falls  to  the  ground 
when  its  foundation  fails.  And  in  particular  cases,  where 
things  cease  for  a  time  to  be  in  the  state  that  has  produced 
or  concurred  to  produce  the  promise,  an  exception  is  to  be 
made  to  it.  An  elective  prince,  being  without  issue,  has  pro- 
mised to  an  ally  that  he  will  procure  his  appointment  to  the 
succession.  He  has  a  son  born  :  who  can  doubt  that  the  pro- 
mise is  made  void  by  this  event  ?  He  who  in  a  time  of  peace 
has  promised  succours  to  an  ally,  is  not  bound  to  give  him 
any  when  he  himself  has  need  of  all  his  forces  for  the  de- 
fence of  his  own  dominions.  A  prince,  possessed  of  no  very 
formidable  power,  has  received  from  his  allies  a  promise  of 
faithful  and  constant  assistance,  in  order  to  his  aggran- 
dizement,— in  order  to  enable  him  to  obtain  a  neighbouring 
state  by  election  or  by  marriage  :  yet  those  allies  will  have 
just  grounds  for  refusing  him  the  smallest  aid  or  support, 
and  even  forming  an  alliance  against  him,  when  they  see  him 
elevated  to  such  a  height  of  power  as  to  threaten  the  liberties 
of  all  Europe.  If  the  great  Gustavus  had  not  been  killed  at 
Lutzen,  cardinal  de  Richelieu,  who  had  concluded  an  alliance 
for  his  master  with  that  prince,  and  who  had  invited  him  into 
Germany,  and  assisted  him  with  money,  would  perhaps  have 
found  himself  obliged  to  traverse  the  designs  of  that  conqueror, 
when  become  formidable, — to  set  bounds  to  his  astonishing 
progress,  and  to  support  his  humbled  enemies.  The  states- 
general  of  the  United  Provinces  conducted  themselves  on 
these  principles  in  1668.  In  favour  of  Spain,  which  before 
had  been  their  mortal  enemy,  they  formed  the  triple  alliance 
against  Louis  XIV.  their  former  ally.  It  was  necessary  to 
raise  a  barrier  to  check  the  progress  of  a  power  which  threat- 
ened to  inundate  and  overwhelm  all  before  it. 

But  we  ought  to  be  very  cautious  and  moderate  in  the  ap- 
plication of  the  present  rule  :  it  would  be  a  shameful  perver- 
sion of  it,  to  take  advantage  of  every  change  that  happens 
in  the  state  of  affairs,  in  order  to  disengage  ourselves  from 
our  promises :  were  such  conduct  adopted,  there  could  be  no 
dependence  placed  on  any  promise  whatever.  That  state  of 
things  alone,  in  consideration  of  which  the  promise  was  made, 
is  essential  to  the  promise  :  and  it  is  only  by  a  change  in  that 
state,  that  the  effect  of  the  promise  can  be  lawfully  prevented  [  262  ] 
or  suspended.  Such  is  the  sense  in  which  we  are  to  under- 
stand that  maxim  of  the  civilians,  conventio  omnis  intelligitur 
rebus  sic  stantibus. 

What  we  say  of  promises,  must  also  be  understood  as  ex- 
tending to  laws.     A  law  which  relates  to  a  certain  situation 

43  2  F  361 


262  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  ii.     of  affairs  can  only  take  place  in  that  situation.    We  ought  to 

CHAP.  XYII.  reason  in  the  same  manner  with  respect  to  a  commission. 

Thus,  Titus  being  sent  by  his  father  to  pay  his  respects  to 

the  emperor,  turned  back  on  being  informed  of  the  death  of 

Galba. 

§  297.  In-  In  unforeseen  cases,  that  is  to  say,  when  the  state  of  things 
terpretation  happens  to  be  such  as  the  author  of  a  deed  has  not  foreseen, 
of  a  deed  m  an(j  C0ll[ft  not  nave  thought  of\  we  should  rather  be  guided  by 
unforeseen  7-  ....  ,7  IT-  7  i  •  j.  *  ±1  • 

cases.          nis  intention  than  by  his  words,  and  interpret  the  instrument 

as  he  himself  would  interpret  it  if  he  were  on  the  spot,  or 
conformably  to  what  he  would  have  done  if  he  had  foreseen 
the  circumstances  which  are  at  present  known.  This  rule  is 
of  great  use  to  judges,  and  to  all  those  in  society  who  are 
appointed  to  carry  into  effect  the  testamentary  regulations 
of  the  citizens.  A  father  appoints  by  will  a  guardian  for  his 
children,  who  are  under  age.  After  his  death  the  magistrate 
finds  that  the  guardian  he  has  nominated  is  an  extravagant 
profligate,  without  property  or  conduct :  he  therefore  dis- 
misses him,  and  appoints  another,  according  to  the  Roman 
laws,*  adhering  to  the  intention  of  the  testator,  and  not  to 
his  words ;  for  it  is  but  reasonable  to  suppose, — and  we  are 
to  presume  it  as  a  fact, — that  the  father  never  intended  to 
give  his  children  a  guardian  who  should  ruin  them,  and  that 
he  would  have  nominated  another,  had  he  known  the  vices  of 
the  person  he  appointed. 

§  298.  Rea-       When  the  things  which  constitute  the  reason  of  a  law  or 
sons  arising  convention  are  considered,  not  as  actually  existing^,  but  simply 
lossibHit      as  P08Sible, — or,  in  other  words,  when  the  fear  of  an  event  is 
ancTnot'the  the  reason  of  a  law  or  a  promise,  no  other  cases  can  be  ex- 
existence  of  cepted  from  it  than  those  in  which  it  can  be  proved  to  demon- 
a  thing.       stration  that  the  event  is  really  impossible.     The  bare  possi- 
bility of  the  event  is  sufficient  to  preclude  all  exceptions.     If, 
for  instance,  a  treaty  declares  that  no  army  or  fleet  shall  be 
conducted  to  a  certain  place,  it  will  not  be  allowable  to  conduct 
thither  an  army  or  a  fleet,  under  pretence  that  no  harm  is  in- 
tended by  such  a  step :  for  the  object  of  a  clause  of  this  nature 
is  not  only  to  prevent  a  real  evil,  but  also  to  keep  all  danger 
at  a  distance,  and  to  avoid  even  the  slightest  subject  of  un- 
easiness.    It  is  the  same  with  the  law  which  forbids  walking 
the  streets  by  night  with  a  lighted  torch  or  candle.     It  would 
be  an  unavailing  plea  for  the  transgression  of  that  law  to 
allege  that  no  mischief  has  ensued,  and  that  he  carried  his 
torch  with  such  circumspection  that  no  ill  consequence  was 
to  be  apprehended.     The  bare  possibility  of  causing  a  confla- 
[  263  ]  gration  was  sufficient  to  have  rendered  it  his  duty  to  obey  the 
law ;  and  he  has  transgressed  it  by  exciting  fears  which  it 
was  the  intention  of  the  legislature  to  prevent. 
§299.  Ex-       At  the  beginning  of  this  chapter,  we  observed  that  men's 

*  Digest,  lib.  xxvi.  tit.  iii.  De  Confirm.  Tutor,  leg.  10. 
362 


OF    THE   INTERPRETATION   OF   TREATIES.  263 

ideas  and  language  are  not  always  perfectly  determinate.  BOOK  n. 
There  is,  doubtless,  no  language  in  which  there  do  not  occur  CHAP.XVII. 
expressions,  words,  or  entire  phrases,  susceptible  of  a  more  or  capable  of 
less  extensive  signification.  Many  a  word  is  equally  appli-anexte.nsive 
cable  to  the  genus  or  the  species : — the  word  fault  implies  ^J^1™1*" 
intentional  guilt  or  simple  error  : — several  species  of  animals 
have  but  one  name  common  to  both  sexes,  as  partridge,  lark, 
sparrow,  &c. ;  when  we  speak  of  horses,  merely  with  a  view 
to  the  services  they  render  to  mankind,  mares  also  are  com- 
prehended under  that  name.  In  technical  language  a  word 
has  sometimes  a  more  and  sometimes  a  less  extensive  sense, 
than  in  vulgar  use  :  the  word  death,  among  civilians,  signifies 
not  only  natural  death,  but  also  civil  death :  verbum,  in  the 
Latin  grammar,  signifies  only  that  part  of  speech  called  the 
verb;  but,  in  common  use,  it  signifies  any  word  in  general. 
Frequently,  also,  the  same  phrase  implies  more  things  on  one 
occasion,  and  fewer  on  another,  according  to  the  nature  of 
the  subject  or  matter:  thus,  when  we  talk  of  sending  suc- 
cours, sometimes  we  understand  a  body  of  auxiliary  troops 
maintained  and  paid  by  the  party  who  sends  them,  at  other 
times  a  body  whose  expenses  are  to  be  entirely  defrayed  by 
the  party  who  receives  them.  It  is  therefore  necessary  to 
establish  rules  for  the  interpretation  of  those  indeterminate 
expressions,  in  order  to  ascertain  the  cases  in  which  they  are 
to  be  understood  in  the  more  extensive  sense,  and  those  in 
which  they  are  to  be  restricted  to  their  more  limited  meaning. 
Many  of  the  rules  we  have  already  given  may  serve  for  this 
purpose. 

But  it  is  to  this  head  that  the  famous  distinction,  between  §  300.  Of 
things  of  &  favourable  and  those  of  an  odious  nature,  particu-  tninss  fe- 
larly  belongs.     Some  writers  have  rejected  the  distinction,*^^' 
doubtless  for  want  of  properly  understanding  it.     In  fact,  odious, 
the  definitions  that  have  been  given  of  what  is  favourable  and 
what  is  odious,  are  not  fully  satisfactory,  nor  easily  applied. 
After  having  maturely  considered  what  the  most  judicious 
authors  have  written  on  the  subject,  I  conceive  the  whole  of 
the  question  to  be  reducible  to  the  following  positions,  which 
convey  a  just  idea  of  that  famous  distinction.     When  the       N 
provisions  of  a  law  or  a  convention  are  plain,  clear,  determi- 
nate, and  attended  with  no  doubt  or  difficulty  in  the  applica- 
tion, there  is  no  room  for  any  interpretation  or  comment  (§263). 
The  precise  point  of  the  will  of  the  legislature  or  the  con- 
tracting parties,  is  what  we  must  adhere  to.     But  if  their  ex- 
pressions are  indeterminate,  vague,  or  susceptible  of  a  more 
or  less  extensive  sense, — if  that  precise  point  of  their  inten- 
tion cannot,  in  the  particular  case  in  question,  be  discovered 
and  fixed  by  the  other  rules  of  interpretation, — we  must  pre- 
sume it  according  to  the  laws  of  reason  and  equity :  and,  for 

*  See  Barbeyrac's  remarks  on  Grotius  and  Puffendorf. 

363 


264  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  n.  this  purpose,  it  is  necessary  to  pay  attention  to  the  nature  of 
CHAP.  XYII.  the  things  to  which  the  question  relates.  There  are  certain 
things  of  which  equity  admits  the  extension,  rather  than  the 
restriction  ;  that  is  to  say,  that,  with  respect  to  those  things, 
the  precise  point  of  the  will  not  being  discovered  in  the  ex- 
pressions of  the  law  or  the  contract,  it  is  safer  atd  more  con- 
sistent with  equity,  to  suppose  and  fix  that  point  in  the  more 
extensive,  than  in  the  more  limited  sense  of  the  terms ;  to 
give  a  latitude  to  the  meaning  of  the  expressions,  than  to 
restrict  it.  These  are  the  things  called  favourable.  Odious 
things,  on  the  other  hand,  are  those,  of  which  the  restriction 
tends  more  certainly  to  equity  than  the  extension.  Let  us 
figure  to  ourselves  the  intention  or  the  will  of  the  legislature 
or  the  contracting  parties,  as  a  fixed  point.  At  that  point 
precisely  should  we  stop,  if  it  be  clearly  known ; — if  uncer- 
tain, we  should  at  least  endeavour  to  approach  it.  In  things 
favourable,  it  is  better  to  pass  beyond  that  point,  than  not  tc 
reach  it ;  in  things  odious,  it  is  better  not  to  reach  it,  than  to 
pass  beyond  it. 

§301.  What      it  win  not  now  be  difficult  to  show,  in  general,  what  things 
common'ad-  are  favourable,  an(i  what  are  odious.     In  the  first  place,  evert/ 
vantage.and  thing  that  tends  to  the  common  advantage  in  conventions,  or 
to  equality,  that  has  a  tendency  to  place  the  contracting  parties  on  a  foot- 
is  favour-     jng  Of  equality,  is  favourable.     The  voice  of  equity,  and  the 
contra    is  general  ru^e  °f  contracts,  require  that  the  conditions  between 
odious.        the  parties  should  be  equal.    We  are  not  to  presume,  without 
very  strong  reasons,  that  one  of  the  contracting  parties  in- 
tended to  favour  the  other  to  his  own  prejudice ;  but  there  is 
no  danger  in  extending  what  is  for  the  common  advantage. 
If,  therefore,  it  happens  that  the  contracting  parties  have  not 
made  known  their  will  with  sufficient  clearness,  and  with  all 
the  necessary  precision,  it  is  certainly  more  conformable  to 
equity  to  seek  for  that  will  in  the  sense  most  favourable  to 
equality  and  the  common  advantage,  than  to  suppose  it  in  the 
contrary  sense.     For  the  same  reason,  every  thing  that  is  not 
for  the  common  advantage,  every  thing  that  tends  to  destroy 
the  equality  of  a  contract,  every  thing  that  onerates  only  one 
of  the  parties,  or  that  onerates  the  one  more  than  the  other,  is 
odious.     In  a  treaty  of  strict  friendship,  union,  and  alliance, 
every  thing  which,  without  being  burdensome  to  any  of  the 
parties,  tends  to  the  common  advantage  of  the  confederacy, 
and  to  draw  the  bonds  of  union  closer,  is  favourable.     In 
unequal  treaties,  and  especially  in  unequal  alliances,  all  the 
clauses  of  inequality,  and  principally  those  that  onerate  the 
inferior  ally,  are  odious.     Upon  this  principle,  that  we  ought 
in  case  of  doubt  to  extend  what  leads  to  equality,  and  restrict 
what  destroys  it,  is  founded  that  well-known  rule — Incom- 
moda  vitantis  melior  quam  commoda  petentis  est  causa,* — 

*  Quintilun,  Instit.  Orai.  lib.  vii.  cap.  iv. 


OF  THE  INTERPRETATION  OP  TREATIES.  264 

the  party  who  endeavours  to  avoid  a  loss  has  a  better  cause  to    BOOK  u. 
support  than  he  who  aims  at  obtaining  an  advantage.  CHAP,  xvn. 

All  those  things  which,  without  proving  too  burdensome  to  §302.  What 
any  one  in  particular,  are  useful  and  salutary  to  human  so- is  useful  to 
ciety,  are  to  be  ranked  in  the  class  of  favourable  things :  for  a  ^™aijs8^ 
nation  is  already  under  a  natural  obligation  with  respect  to  v^urabL  *" 
things  of  this  nature  :  so  that  if  she  has  entered  into  any  the  contrary 
particular  engagements  of  this  kind,  we  run  no  risk  in  giving  is  odious, 
those  engagements  the  most  extensive  meaning  of  which  they  [  265  ] 
are  susceptible.     Can  we  be  afraid  of  violating  the  rules  of 
equity  by  following  the  law  of  nature,  and  giving  the  utmost 
extent  to  obligations  that  tend  to  the  common  advantage  of 
mankind  ?    Besides,  things  which  are  useful  to  human  society 
are,  from  that  very  circumstance,  conducive  to  the  common 
advantage  of  the  contracting  parties,  and  are  consequently 
favourable  (see  the  preceding  section).     On  the  other  hand, 
let  us  consider  as  odious  every  thing  that  is,  in  its  own  nature, 
rather  injurious  than  useful  to  mankind.    Those  things  which 
have  a  tendency  to  promote  peace  are  favourable ;  those  that 
lead  to  war  are  odious. 

Every  thing  that  contains  a  penalty,  is  odious.     With  re-  §303. What- 
spect  to  the  laws,  it  is  universally  agreed,  that,  in  case  of  ev.er  con- 
doubt,  the  judge  ought  to  incline  to  the  merciful  side,  and  ^"s  ^J6" 
that  it  is  indisputably  better  to  suffer  a  guilty  person  to  escape,  odious!8 
than  to  punish  one  who  is  innocent.     Penal  clauses  in  trea- 
ties lay  a  burden  upon  one  of  the  parties  ;  they  are  there- 
fore odious  (§  301). 

Whatever  tends  to  render  a  deed  void  and  ineffectual,  either  §  304. 
in  the  whole,  or  in  part,  and  consequently,  whatever  introduces  Whatever 
any  change  in  things  already  agreed  upon,  is  odious :  for  J^Jj^J  is 
men  treat  together  with  a  view  to  their  common  benefit ;  and  odious, 
if  I  enjoy  any  particular  advantage  acquired  by  a  lawful  con- 
tract, I  must  not  be  deprived  of  it  except  by  my  own  renun- 
ciation.   When,  therefore,  I  consent  to  new  clauses  that  seem 
to  derogate  from  it,  I  can  lose  my  right  only  so  far  as  I  have 
clearly  given  it  up  ;  and  consequently  these  new  clauses  are 
to  be  understood  in  the  most  limited  sense  they  will  admit 
of;  as  is  the  case  in  things  of  an  odious  nature  (§  300).     If 
that  which  tends  to  render  a  deed  void  and  ineffectual  is  con- 
tained in  the  deed  itself,  it  is  evident  that  such  passages 
ought  to  be  construed  in  the  most  limited  sense,  in  the  sense 
best  calculated  to  preserve  the  deed  in  force.     We  have  al- 
ready seen,  that  we  should  reject  every  interpretation  which 
tends  to  render  a  deed  void  and  ineffectual  (§  283). 

Whatever  tends  to  change  the  present  state  of  things  is  §  305. 
also  to  be  ranked  in  the  class  of  odious  things :  for  the  pro-  Whatever 
prietor  cannot  be  deprived  of  his  right,  except  so  far,  pre-  H™ J  ^ft 
cisely,  as  he  relinquishes  it  on  his  part ;  and,  in  case  of  doubt,  present  state 
the  presumption  is  in  favour  of  the  possessor.     It  is  less  re- of  things,  is 
pugnant  to  equity  to  withhold  from  the  owner  a  possession  odious ;  the 

2  F  2  365 


265  OF   THE   INTERPRETATION   OF  TREATIES. 

BOOK  ii.    which  he  has  lost  through  his  own  neglect,  than  to  strip  the 
CHAP.  XTII. just  possessor  of  what  lawfully  belongs  to  him.    In  the  inter- 
contrary  is   pretation,  therefore,  we  ought  rather  to  hazard  the  former  in- 
favourable,    convenience  than  the  latter.     Here  also  may  be  applied,  in 
many  cases,  the  rule  we  have  mentioned  in  §  301,  that  the 
party  who  endeavours  to  avoid  a  loss,  has  a  better  cause  to 
support  than  he  who  aims  at  obtaining  an  advantage. 
§  306.  Finally,  there  are  things  which  are  at  once  of  a  favourable 

Things  of  a  or  an  odious  nature,  according  to  the  point  of  view  in  which 
mixed  na-  they  are  considered.  Whatever  derogates  from  treaties,  or 
t"re'  changes  the  state  of  things,  is  odious  ;  but  if  it  is  conducive 

L  ^vv  J  ^Q  peac6)  jt  jSj  jn  that  particular,  favourable.  A  degree  of 
odium  always  attaches  to  penalties :  they  may,  however,  be 
viewed  in  a  favourable  light  on  those  occasions  when  they  are 
particularly  necessary  for  the  safety  of  society.  When  there 
is  question  of  interpreting  things  of  this  nature,  we  ought  to 
consider  whether  what  is  favourable  in  them  greatly  exceeds 
what  appears  odious, — whether  the  advantage  that  arises  from 
their  being  extended  to  the  utmost  latitude  of  which  the  terms 
are  susceptible,  will  materially  outweigh  the  severe  and  odious 
circumstances  attending  them ;  and  if  that  is  the  case,  they 
are  to  be  ranked  in  the  class  of  favourable  things.  Thus,  an 
inconsiderable  change  in  the  state  of  things,  or  in  conven- 
tions, is  reckoned  as  nothing,  when  it  procures  the  inesti- 
mable blessings  of  peace.  In  the  same  manner,  penal  laws 
may  be  interpreted  in  their  most  extensive  meaning,  on  cri- 
tical occasions,  when  such  an  instance  of  severity  becomes 
necessary  to  the  safety  of  the  state.  Cicero  caused  the  ac- 
complices of  Catiline  to  be  executed  by  virtue  of  a  decree  of 
the  senate, — the  safety  of  the  republic  rendering  it  improper 
to  wait  till  they  should  be  condemned  by  the  people.  But 
where  there  is  not  so  great  a  disproportion  in  the  case,  and 
where  things  are  in  other  respects  equal,  favour  inclines  to 
that  side  of  the  question  which  presents  nothing  odious ; — 
that  is  to  say,  we  ought  to  abstain  from  things  of  an  odious 
nature,  unless  the  attendant  advantage  so  far  exceed  the  odi- 
ous part  as  in  a  manner  to  conceal  it  from  view.  If  there 
be  any  appearance,  however  small,  of  an  equilibrium  between 
the  odious  and  the  favourable  in  one  of  those  things  of  a 
mixed  nature,  it  is  ranked  in  the  class  of  odious  things,  by  a 
natural  consequence  drawn  from  the  principle  on  which  we 
have  founded  the  distinction  between  things  of  a  favourable 
and  things  of  an  odious  nature  (§  300),  because,  in  case  of 
doubt,  we  should,  in  preference,  pursue  that  line  of  conduct 
by  which  we  are  least  exposed  to  deviate  from  the  principles 
of  equity.  In  a  doubtful  case,  we  may  reasonably  refuse  to 
give  succours  (though  a  thing  favourable),  when  there  is  ques- 
tion of  giving  them  against  an  ally, — which  would  be  odious. 
The  following  are  the  rules  of  interpretation,  which  flow 
from  the  principles  we  have  just  laid  down. 


OP   THE   INTERPKETATION   OF   TREATIES.  266 

1.  When  the  question  relates  to  things  favourable,  we  ought    BOOK  n. 
to  give  the  terms  the  utmost  latitude  of  which  they  are  suscep-  CHAP,  xvn. 
tible  according  to  the  common  usage  of  the  language  ;  and  if  a  §  307.  Inter- 
term  has  more  than  one  signification,  the  most  extensive  mean-  pretation  of 
ing  is  to  be  preferred :  for  equity  ought  to  be  the  rule  of  con-  fayourable 
duct  with  all  mankind  wherever  a  perfect  right  is  not  exactly  *  mgs' 
determined  and  known  in  its  precise  extent.    When  the  legis- 
lature or  the  contracting  parties  have  not  expressed  their  will 

in  terms  that  are  precise  and  perfectly  determinate,  it  is  to  be 
presumed  that  they  intended  what  is  most  equitable.  Now,  [  267  ] 
when  there  is  question  of  favourable  things,  the  more  exten- 
sive signification  of  the  terms  accords  better  with  equity  than 
the  more  confined  signification.  Thus  Cicero,  in  pleading 
the  cause  of  Caecina,  justly  maintains  that  the  interlocutory 
decree,  ordaining,  "  that  the  person  expelled  from  his  inhe- 
ritance be  reinstated  in  the  possession,"  should  be  understood 
as  extending  to  the  man  who  has  been  forcibly  prevented  from 
entering  upon  it  :*  and  the  Digest  decides  it  in  the  same 
manner,  f  It  is  true  that  this  decision  is  also  founded  on  the 
rule  taken  from  parity  of  reasoning  (§  290).  For  it  amounts 
to  the  same  thing  in  effect,  to  drive  a  person  from  his  inhe- 
ritance, or  forcibly  to  prevent  him  from  entering  upon  it; 
and,  in  both  cases,  the  same  reason  exists  for  putting  him  in 
possession. 

2.  In  questions  relating  to  favourable  things,  all  terms  of 
art.  are  to  be  interpreted  in  the  fullest  latitude  of  which  they 
are  susceptible,  not  only  in  common  usage,  but  also  as  tech- 
nical terms,  if  the  person  speaking  understands  the  art  to 
which  those  terms  belong,  or  conducts  himself  by  the  advice 
of  men  who  understand  that  art. 

3.  But  we  ought  not,  from  the  single  reason  that  a  thing 
is  favourable,  to  take  the  terms  in  an  improper  signification : 
this  is  not  allowable,  except  when  necessary  in  order  to  avoid 
absurdity,  injustice,  or  the  nullity,  of  the  instrument,  as  is 
practised  on  every  subject  (§§  282,  283) :  for  we  ought  to 
take  the  terms  of  a  deed  in  their  proper  sense,  conformably 
to  custom,  unless  we  have  very  strong  reasons  for  deviating 
from  it  (§  271). 

4.  Though  a  thing  appears  favourable  when   viewed  in 
one  particular  light, — yet,  where  the  proper  meaning  of  the 
terms  would,  if  taken  in  its  utmost  latitude,  lead  to  absurdity 
or  injustice,  their  signification  must  be  restricted  according 
to  the  rules  given  above  (§§  293,  294).     For  here,  in  this  par- 
ticular case,  the  thing  becomes  of  a  mixed  nature,  and  even 
such  as  ought  to  be  ranked  in  the  class  of  odious  things. 

5.  For  the  same  reason,  although  neither  absurdity  nor 
injustice  results  from  the  proper  meaning  of  the  terms, — if, 

*  Orat.  pro  Csecina,  cap.  xxiii. 

t  Digest,  lib.  xliii.  tit.  xvi.     De  Vi,  et  Vi  Armata,  legg.  1  et  3. 

367 


267  OF   THE   INTERPRETATION   OF   TREATIES. 

BOOK  ii.  nevertheless,  manifest  equity  or  a  great  common  advantage 
CHAP,  xvn.  regujres  their  restriction,  ive  ought  to  adhere  to  the  most  li- 
mited sense  which  the  proper  signification  will  admit,  even  in 
an  affair  that  appears  favourable  in  its  own  nature, — because 
here  also  the  thing  is  of  a  mixed  kind,  and  ought,  in  this 
particular  case,  to  be  esteemed  odious.  As  to  the  rest,  it  is 
to  be  carefully  remembered  that  all  these  rules  relate  only  to 
doubtful  cases ;  since  we  are  not  allowed  to  go  in  quest  of 
interpretations  for  what  is  already  clear  and  determinate 
(§  263).  If  any  one  has  clearly  and  formally  bound  him- 
self to  burdensome  conditions,  he  has  knowingly  and  will- 
ingly done  it,  and  cannot  afterwards  be  admitted  to  appeal  to 
equity. 

g  308.  In-  Since  odious  things  are  those  whose  restriction  tends  more 
terpretation  certainly  to  equity  than  their  extension,  and  since  we  ought 
thinS"18  to  Pursue  tnat  line  which  is  most  conformable  to  equity,  when 
f  268  1  *ne  will  °f  the  legislature  or  of  the  contracting  parties  is  not 
exactly  determined  and  precisely  known, — we  should,  when 
there  is  question  of  odious  things,  interpret  the  terms  in  the 
most  limited  sense:  we  may  even  to  a  certain  degree  adopt 
a  figurative  meaning,  in  order  to  avert  the  oppressive  conse- 
quences of  the  proper  and  literal  sense,  or  any  thing  of  an 
odious  nature,  which  it  would  involve :  for  we  are  to  favour 
equity,  and  to  do  away  every  thing  odious,  as  far  as  that  can 
be  accomplished,  without  going  in  direct  opposition  to  the 
tenor  of  the  instrument,  or  visibly  wresting  the  text.  Now, 
neither  the  limited  nor  even  the  figurative  sense  offers  any 
violence  to  the  text.  If  it  is  said  in  a  treaty,  that  one  of  the 
allies  shall  assist  the  other  with  a  certain  number  of  troops 
at  his  own  expense,  and  that  the  latter  shall  furnish  the  same 
number  of  auxiliary  troops  at  the  expense  of  the  party  to 
whom  they  are  sent,  there  is  something  odious  in  the  engage- 
ment of  the  former  ally,  since  he  is  subject  to  a  greater  bur- 
den than  the  other :  but  the  terms  being  clear  and  express, 
there  is  no  room  for  any  restrictive  interpretation.  But  if  it 
were  stipulated  in  this  treaty,  that  one  of  the  allies  shall  fur- 
nish a  body  of  ten  thousand  men,  and  the  other  only  of  five 
thousand,  without  mentioning  the  expense,  it  ought  to  be  un- 
derstood that  the  auxiliary  troops  shall  be  supported  at  the 
expense  of  the  ally  to  whose  assistance  they  are  sent ;  this 
interpretation  being  necessary,  in  order  that  the  inequality 
between  the  contracting  powers  may  not  be  carried  too  far. 
Thus,  the  cession  of  a  right,  or  of  a  province,  made  to  a  con- 
queror in  order  to  obtain  peace,  is  interpreted  in  its  most 
confined  sense.  If  it  be  true  that  the  boundaries  of  Acadia 
have  always  been  uncertain,  and  that  the  French  were  the 
lawful  possessors  of  it,  that  nation  will  be  justified  in  main- 
taining that  their  cession  of  Acadia  to  the  English,  by  the 
treaty  of  Utrecht,  did  not  extend  beyond  the  narrowest  limits 
of  that  province. 

3G3 


OF   THE   INTERPRETATION   OF   TREATIES.  268 

In  point  of  penalties,  in  particular,  when  they  are  really    BOOK  H. 
odious,  we  ought  not  only  to  restrict  the  terms  of  the  law,  or  CHAP-  *TU- 
of  the  contract,  to  their  most  limited  signification,  and  even 
adopt  a  figurative  meaning,  according  as  the  case  may  require 
or  authorize  it, — but  also  to  admit  of  reasonable  excuses; 
which  is  a  kind  of  restrictive  interpretation,  tending  to  exempt 
the  party  from  the  penalty. 

The  same  conduct  must  be  observed  with  respect  to  what 
may  render  an  act  void  and  without  effect.  Thus,  when  it  is 
agreed  that  the  treaty  shall  be  dissolved  whenever  one  of  the 
contracting  parties  fails  in  the  observance  of  any  article  of  it, 
it  would  be  at  once  both  unreasonable  and  contrary  to  the 
end  proposed  in  making  treaties,  to  extend  that  clause  to  the 
slightest  faults,  and  to  cases  in  which  the  defaulter  can  allege 
well-grounded  excuses. 

Grotius  proposes  the  following  question — "  Whether  in  a  §  309. 
treaty  which  makes  mention  of  allies,  we  are  to  understand  Examples, 
those  only  who  were  in  alliance  at  the  time  when  the  treaty  [  269  ] 
was  made,  or  all  the  allies  present  and  future  ?"*  And  he 
gives,  as  an  instance,  that  article  of  the  treaty  concluded  be- 
tween the  Romans  and  Carthaginians,  after  the  war  of  Sicily, 
— that,  "  neither  of  the  two  nations  should  do  any  injury  to 
the  allies  of  the  other."  In  order  to  understand  this  part 
of  the  treaty,  it  is  necessary  to  call  to  mind  the  barbarous 
law  of  nations  observed  by  those  ancient  people.  They  thought 
themselves  authorized  to  attack,  and  to  treat  as  enemies,  all 
with  whom  they  were  not  united  by  any  alliance.  The  article 
therefore  signifies,  that  on  both  sides  they  should  treat  as 
friends  the  allies  of  their  ally,  and  abstain  from  molesting  or 
invading  them  :  upon  this  footing  it  is  in  all  respects  so  favour- 
able, so  conformable  to  humanity,  and  to  the  sentiments  which 
ought  to  unite  two  allies,  that  it  should,  without  hesitation, 
be  extended  to  all  the  allies,  present  and  future.  The  clause 
cannot  be  said  to  involve  any  thing  of  an  odious  nature,  as 
cramping  the  freedom  of  a  sovereign  state,  or  tending  to  dis- 
solve an  alliance :  for,  by  engaging  not  to  injure  the  allies 
of  another  power,  we  do  not  deprive  ourselves  of  the  liberty 
to  make  war  on  them  if  they  give  us  just  case  for  hostilities ; 
and  when  a  clause  is  just  and  reasonable,  it  does  not  become 
odious  from  the  single  circumstance  that  it  may  perhaps 
eventually  occasion  a  rupture  of  the  alliance.  Were  that  to 
be  the  case,  there  could  be  no  clause  whatever  that  might 
not  be  deemed  odious.  This  reason,  which  we  have  touched 
upon  in  the  preceding  section  and  in  §  304,  holds  good  only 
in  doubtful  cases ;  in  the  case  before  us,  for  instance,  it  ought 
to  have  prevented  too  hasty  a  decision  that  the  Carthaginians 
had  causelessly  attacked  an  ally  of  the  Romans.  The  Car- 
thaginians, therefore,  might,  without  any  violation  of  the 

*  Lib.  ii.  cap.  xvi.  §  13. 
47  369 


269  OF   THE   INTERPRETATION   OF  TREATIES. 

BOOK  n.  treaty,  attack  Saguntum,  if  they  had  lawful  grounds  for  such 
CHAP.  XYII.  an  attack,  or  (in  virtue  of  the  voluntary  law  of  nations)  even 
apparent  or  specious  grounds  (Prelim.  §  21).  But  they  might 
have  attacked  in  the  same  manner  the  most  ancient  ally  of  the 
Romans ;  and  the  Romans  might  also,  without  breaking  the 
treaty  of  peace,  have  confined  themselves  to  the  succouring 
of  Saguntum.  At  present,  treaties  include  the  allies  on  both 
sides :  but  this  does  not  imply  that  one  of  the  contracting 
powers  may  not  make  war  on  the  allies  of  the  other  if  they 
give  him  cause  for  it — but  simply,  that,  in  case  of  any  quar- 
rel arising  between  them,  each  of  the  contracting  parties  re- 
serves to  himself  a  power  of  assisting  his  more  ancient  ally : 
and,  in  this  sense,  the  future  allies  are  not  included  in  the 
treaty. 

Another  example  mentioned  by  Grotius  is  also  taken  from 
a  treaty  concluded  between  Rome  and  Carthage.  When  the 
latter  city  was  reduced  to  extremities  by  Scipio  JEmilianus, 
and  obliged  to  capitulate,  the  Romans  promised  "that  Car- 
thage should  remain  free,  or  in  possession  of  the  privilege  of 
governing  herself  by  her  own  laws."*  In  the  sequel,  how- 
ever, these  merciless  conquerors  pretended  that  the  promised 
liberty  regarded  the  inhabitants,  and  not  the  city :  they  in- 
sisted that  Carthage  should  be  demolished,  and  that  the 
wretched  inhabitants  should  settle  in  a  place  at  a  greater  dis- 
tance from  the  sea.  One  cannot  read  the  account  of  this  per- 
fidious and  cruel  treatment,  without  being  concerned  that  the 
great,  the  amiable  Scipio  was  obliged  to  be  the  instrument 
[  270  ]  of  it.  To  say  nothing  of  the  chicanery  of  the  Romans  respect- 
ing the  meaning  to  be  annexed  to  the  word  "  Carthage," — 
certainly,  the  "liberty"  promised  to  the  Carthaginians,  though 
narrowly  circumscribed  by  the  existing  state  of  affairs,  should 
at  least  have  extended  to  the  privilege  of  remaining  in  their 
city.  To  find  themselves  obliged  to  abandon  it  and  settle 
elsewhere, — to  lose  their  houses,  their  port,  and  the  advan- 
tages of  their  situation, — was  a  subjection  incompatible  with 
the  smallest  degree  of  liberty,  and  involved  such  considerable 
losses  as  they  could  not  have  bound  themselves  to  submit  to, 
unless  by  a  positive  engagement  in  the  most  express  and 
formal  terms. 

g  310.  How  Liberal  promises,  benefactions,  and  rewards  naturally  come 
we  ought  to  under  the  class  of  favourable  things,and  receive  an  extensive  in- 
interpret  terpretation,  unless  they  prove  onerous  or  unreasonably  charge- 
able  to  the  benefactor,  or  that  other  circumstances  evidently 
show  they  are  to  be  taken  in  a  limited  sense.  For  kindness, 
benevolence,  beneficence,  and  generosity  are  liberal  virtues  ; 
they  do  not  act  in  a  penurious  manner,  and  know  no  other 
bounds  than  those  set  by  reason.  But  if  the  benefaction  falls 
too  heavy  upon  him  who  grants  it,  in  this  respect  it  partakes 

»  AUTOVO//OJ.     Appian.  de  Bello  Punico. 
*70 


Or  THE  INTERPKETATION   OF   TREATIES.  270 

of  the  odious ;  and,  in  case  of  doubt,  equity  will  not  admit    BOOK  n. 
the  presumption  that  it  has  been  granted  or  promised  in  the  CHAP-  XYIT- 
utmost  extent  of  the  terms  :  we  ought  therefore,  in  such  case, 
to  confine  ourselves  to  the  most  limited  signification  which  the 
words  are  capable  of  receiving,  and  thus  reduce  the  bene- 
faction within  the  bounds  of  reason.     The  same  mode  should 
be  adopted  when  other  circumstances  evidently  point   the 
more  limited  signification  as  the  more  equitable. 

Upon  these  principles,  the  bounties  of  a  sovereign  are 
usually  taken  in  the  fullest  extent  of  the  terms.*  It  is  not 
presumed  that  he  finds  himself  over-burdened  by  them  ;  it  is 
a  respect  due  to  majesty,  to  suppose  that  he  had  good 
reasons  to  induce  him  to  confer  them.  They  are  therefore, 
in  their  own  nature,  altogether  favourable ;  and,  in  order  to 
restrict  them,  it  must  be  proved  that  they  are  burdensome  to 
the  prince,  or  prejudicial  to  the  state.  On  the  whole,  we 
ought  to  apply  to  deeds  of  pure  liberality  the  general  rule 
established  above  (§  270) ;  if  those  instruments  are  not  pre- 
cise and  very  determinate,  they  should  be  interpreted  as 
meaning  what  the  author  probably  had  in  his  mind.  [  271  ] 

Let  us  conclude  this  subject  of  interpretation  with  what  g  311.    Coi- 
relates  to  the  collision  or  opposition  of  laws  or  treaties.     We1""""*1""" 
do  not  here  speak  of  the  collision  of  a  treaty  with  the  law  of  or  treaties- 
nature :  the  latter  is  unquestionably  paramount,  as  we  have 
proved  elsewhere  (§§  160,  161,  170,  and  293).     There  is  a 
collision  or  opposition  between  two  laws,  two  promises,  or  two 
treaties,  when  a  case  occurs  in  which  it  is  impossible  to  fulfil 
both  at  the  same  time,  though  otherwise  the  laws  or  treaties 
in  question  are  not  contradictory,  and  may  be  both  fulfilled 
under  different  circumstances.     They  are  considered  as  con- 
trary in  this  particular  case  ;  and  it  is  required  to  show  which 
deserves  the  preference,  or  to  which  an  exception  ought  to 
be  made  on  the  occasion.     In  order  to  guard  against  all  mis- 
take in  the  business,  and  to  make  the  exception  conformably 
to  reason  and  justice,  we  should  observe  the  following  rules  : 

1.  In  all  cases  where  what  is  barely  permitted  is  found  in-  $  312.  First 
compatible  with  what  is  positively  prescribed,  the  latter  claims rule  in  case 
a  preference  :  for  the  mere  permission  imposes  no  obligatk 
to  do  or  not  to  do  :  what  is  permitted  is  left  to  our  own  option 
— we  are  at  liberty  either  to  do  it  or  to  forbear  to  do  it.    But 
we  have  not  the  same  liberty  with  respect  to  what  is  pre- 
scribed :  we  are  obliged  to  do  that :  nor  can  the  bare  per- 
mission in  the  former  case  interfere  with  the  discharge  of  our 
obligation  in  the  latter ;  but,  on  the  contrary,  that  which 
was  before  permitted  in  general,  ceases  to  be  so  in  this  par- 

*  Such  is  the  decision  of  the  Roman  for  it :  "  quod  a  divina  ejus  indulgentia 

law. — Javolenus      says :     "  Beneficium  proficiscatur." — Digest,  lib.  i.  tit.  iv.  de 

imperatoris   quam  plenissime  interpre-  Constit.  Princ.  leg.  3. 
tari  debemus ;"  and  he  gives  this  reason 

371 


271 


OF  THE   INTERPRETATION   OF   TREATIES. 


BOOK  ii.    ticular  instance,  where  we  cannot  take  advantage  of  the  per- 
CHAP.  XYII.  missjon  -without  violating  a  positive  duty. 
I  313.   2d        2.  In  the  same  manner,  the  law  or  treaty  which  permits, 
Rule-          ought  to  give  way  to  the  law  or  treaty  which  forbids :  for  the 
prohibition  must  be  obeyed ;  and  what  was,  in  its  own  nature, 
or  in  general,  permitted,  must  not  be  attempted  when  it  can- 
not be  done  without  contravening  a  prohibition :  the  permis- 
sion, in  that  case,  ceases  to  be  available. 

g  314.  3d  3.  All  circumstances  being  otherwise  equal,  the  law  or  the 
Rule.  treaty  which  ordains,  gives  way  to  the  law  or  the  treaty  which 
forbids.  I  say,  "all  circumstances  being  otherwise  equal;" 
for  many  other  reasons  may  occur,  which  will  authorize  the 
exception  being  made  to  the  prohibitory  law  or  treaty.  The 
rules  are  general ;  each  relates  to  an  abstract  idea,  and  shows 
what  follows  from  that  idea,  without  derogation  to  the  other 
rules.  Upon  this  footing,  it  is  evident  that,  in  general,  if  we 
cannot  obey  an  injunctive  law  without  violating  a  prohibitory 
one,  we  should  abstain  from  fulfilling  the  former :  for  the  pro- 
hibition is  absolute  in  itself,  whereas  every  precept,  every 
injunction,  is  in  its  own  nature  conditional,  and  supposes  the 
power,  or  a  favourable  opportunity,  of  doing  what  is  pre- 
scribed. Now  when  that  cannot  be  accomplished  without 
contravening  a  prohibition,  the  opportunity  is  wanting,  and 
this  collision  of  laws  produces  a  moral  impossibility  of  acting ; 
for  what  is  prescribed  in  general,  is  no  longer  so  in  the  case 
[  272  ]  where  it  cannot  be  done  without  committing  an  action  .that 
is  forbidden.*  Upon  this  ground  rests  the  generally  received 
maxim  that  we  are  not  justifiable  in  employing  unlawful  means 
to  accomplish  a  laudable  end, — as,  for  instance,  in  stealing 
with  a  view  to  give  alms.  But  it  is  evident  that  the  question 
here  regards  an  absolute  prohibition,  or  those  cases  to  which 
the  general  prohibition  is  truly  applicable,  and  therefore  equi- 
valent to  an  absolute  one :  there  are,  however,  many  prohi- 
bitions to  which  circumstances  form  an  exception.  Our  mean- 
ing will  be  better  explained  by  an  example.  It  is  expressly 
forbidden,  for  reasons  to  me  unknown,  to  pass  through  a  cer- 
tain place  under  any  pretence  whatsoever.  I  am  ordered  to 
carry  a  message ;  I  find  every  other  avenue  shut ;  I  there- 
fore turn  back  rather  than  take  my  passage  over  that  ground 
which  is  so  strictly  forbidden.  But  if  the  prohibition -to  pass 
be  only  a  general  one,  with  a  view  to  prevent  any  injury  being 
done  to  the  productions  of  the  soil,  it  is  easy  for  me  to  judge 
that  the  orders  with  which  I  am  charged  ought  to  form  an 
exception. 

As  to  what  relates  to  treaties,  we  are  not  obliged  to  ac- 
complish what  a  treaty  prescribes,  any  farther  than  we  have 

*  The  prohibitory  law  creates,  in  that    vetat,   quasi   exceptione   quadam,   cor- 
particular  instance,  an  exception  to  the    rigere  videtur  illam   quse  jubet." — Ci- 
injunctive    law.       "Deinde    utra    lex    cero,  de  Inventione,  lib.  ii.  145. 
iubeat,  utra  vetet.    Nam  ssepe  ea  quae 
372 


OF   THE   INTERPRETATION   OF   TREATIES.  272 

the  power.     Now,  we  have  not  a  power  to  do  what  another    BOOK  n. 
treaty  forbids :  wherefore,  in  case  of  collision,  an  exception  CHAP-  XYU- 
is  made  to  the  injunctive  treaty,  and  the  prohibitory  treaty 
has  a  superior  claim  to  our  observance, — provided,  however, 
that  all  circumstances  be  in  other  respects  equal ;  for  it  will 
presently  appear,  for  instance,  that  a  subsequent  treaty  can- 
not derogate  from  a  prior  one  concluded  with  another  state, 
nor  hinder  its  effect  directly  or  indirectly. 

4.  The  dates  of  laws  or  treaties  furnish  new  reasons  for  g  315.   4th 
establishing  the  exception  in  cases  of  collision.     If  the  c0Z-Rule- 
lision  happen  between  two  affirmative  laws,  or  two  affirmative    * 
treaties  concluded  between  the  same  persons  or  the  same  states, 

that  which  is  of  more  recent  date  claims  a  preference  over 
the  older  one :  for  it  is  evident,  that  since  both  laws  or  both 
treaties  have  emanated  from  the  same  power,  the  subsequent 
act  was  capable  of  derogating  from  the  former.  But  still  this 
is  on  the  supposition  of  circumstances  being  in  other  respects 
equal. — If  there  be  a  collision  between  two  treaties  made  with 
tivo  different  powers,  the  more  ancient  claims  the  preference : 
for  no  engagement  of  a  contrary  tenor  could  be  contracted 
in  the  subsequent  treaty ;  and  if  this  latter  be  found,  in  any 
case,  incompatible  with  that  of  more  ancient  date,  its  execu- 
tion is  considered  as  impossible,  because  the  person  promis- 
ing had  not  the  power  of  acting  contrary  to  his  antecedent 
engagements. 

5.  Of  two  laws  or  two  conventions,  we  ought  (all  other  cir-  $  316.   5th 
cumstances  being  equal)  to  prefer  the  one  which  is  less  general,  R«ie. 
and  which  approaches  nearer  to  the  point  in  question :  be- 
cause special  matter  admits  of  fewer  exceptions  than  that  [  273  ] 
which  is  general ;  it  is  enjoined  with  greater  precision,  and 
appears  to  have  been  more  pointedly  intended.     Let  us  make 

use  of  the  following  example  from  Puffendorf  :* — One  law 
forbids  us  to  appear  in  public  with  arms  on  holidays ;  another 
law  commands  us  to  turn  out  under  arms,  and  repair  to  our 
posts,  as  soon  as  we  hear  the  sound  of  the  alarm-bell.  The 
alarm  is  rung  on  a  holiday.  In  such  case  we  must  obey  the 
latter  of  the  two  laws,  which  creates  an  exception  to  the 
former. 

6.  What  will  not  admit  of  delay,  is  to  be  preferred  to  what  $  317.    eth 
may  be  done  at  another  time.     For  this  is  the  mode  to  recon-  Rule, 
cile  every  thing,  and  fulfil  both  obligations ;  whereas,  if  we 

gave  the  preference  to  the  one  which  might  be  fulfilled  at  an- 
other time,  we  would  unnecessarily  reduce  ourselves  to  the 
alternative  of  failing  in  our  observance  of  the  other. 

7.  When  two  duties  stand  in  competition,  that  one  which  is  %  318.    7th 
the  more  considerable,  the  more  praiseworthy,  and  productive  Rule- 

of  the  greater  utility,  is  entitled  to  the  preference.  This  rule 
has  no  need  of  proof.  But  as  it  relates  to  duties  that  are 

*  Jus  Gent.  lib.  y.  cap.  xii.  §  23. 

2G  373 


273  OF  THE  INTERPRETATION   OF  TREATIES. 

BOOK  n.  equally  in  our  power,  and,  as  it  were,  at  our  option,  we  should 
CHAP,  xvn.  carefuiiv  guard  against  the  erroneous  application  of  it  to  two 
duties  which  do  not  really  stand  in  competition,  but  of  which 
the  one  absolutely  precludes  the  other, — our  obligation  to 
fulfil  the  former  wholly  depriving  us  of  the  liberty  to  perform 
the  latter.  For  instance,  it  is  a  more  praiseworthy  deed  to 
defend  one  nation  against  an  ..unjust  aggressor,  than  to  assist 
another  in  an  offensive  war.  But,  if  the  latter  be  the  more 
ancient  ally,  we  are  not  at  liberty  to  refuse  her  our  assist- 
ance and  give  it  to  the  former ;  for  we  stand  pre-engaged. 
There  is  not,  strictly  speaking,  any  competition  between  these 
two  duties :  they  do  not  lie  at  our  option :  the  prior  engage- 
ment renders  the  second  duty,  for  the  present,  impracticable. 
However,  if  there  were  question  of  preserving  a  new  ally  from 
certain  ruin,  and  that  the  more  ancient  ally  were  not  reduced 
to  the  same  extremity,  this  would  be  the  case  to  which  the 
foregoing  rule  should  be  applied. 

As  to  what  relates  to  laws  in  particular,  the  preference  is 
undoubtedly  to  be  given  to  the  more  important  and  necessary 
ones.  This  is  the  grand  rule  to  be  observed  whenever  they 
are  found  to  clash  with  each  other ;  it  is  the  rule  which  claims 
the  greatest  attention,  and  is  therefore  placed  by  Cicero  at 
the  head  of  all  the  rules  he  lays  down  on  the  subject.*  It  is 
counteracting  the  general  aim  of  the  legislature,  and  the  great 
end  of  the  laws,  to  neglect  one  of  great  importance,  under 
[  274  ]  pretence  of  observing  another  which  is  less  necessary,  and  of 
inferior  consequence :  in  fact,  such  conduct  is  criminal ;  for, 
a  lesser  good,  if  it  exclude  a  greater,  assumes  the  nature  of 
an  evil. 

f  319.   8th       8.  If  we  cannot  acquit  ourselves  at  the  same  time  of  two 
R»1(>.  things  promised  to  the  same  person,  it  rests  with  him  to  choose 

which  of  the  two  we  are  to  perform;  for  he  may  dispense  with 
the  other  on  this  particular  occasion ;  in  which  case  there  will 
no  longer  be  any  collision  of  duties.  But  if  we  cannot  obtain 
a  knowledge  of  his  will,  we  are  to  presume  that  the  more  im- 
portant one  is  his  choice  ;  and  we  should  of  course  give  that 
the  preference.  And,  in  case  of  doubt,  we  should  perform  the 
one  to  which  we  are  the  more  strongly  bound; — it  being  pre- 
sumable that  he  chose  to  bind  us  more  strongly  to  that  in 
which  he  is  more  deeply  interested. 

$  320.   9th       9.  Since  the  stronger  obligation  claims  a  preference  over 
Rule<          the  weaker, — if  a  treaty  that  has  been  confirmed  by  an  oath 
happens  to  clash  with  another  treaty  that  has  not  been  sworn 
to, — all  circumstances  being  in  other  respects  equal,  the  prefer- 
ence is  to  be  given  to  the  former ;  because  the  oath  adds  a 

*  "  Primum  igitur  leges  oportet  con-  duae,  aut  si  plures,  aut  quotquot  erunt, 

tendere,    considerando    utra    lex      ad  conservari  non  possint  quia  discrepant 

majores,  hoc   est,  ad  utiliorcs,  ad  ho-  inter  se,  ea  maxime  conservanda  puto- 

nestiores,  ac  magis  necessarias  res  per-  tur,  quae  ad  masimas  res  pertinere  vide- 

tineat.     Ex  quo   conficitur  ut,  si  leges  atur."     Cicero,  ubi  supra. 
374 


OF   THE   MODE   OF   TEKMINATING   DISPUTES.  274 

new  force  to  the  obligation.     But  as  it  makes  no  change  in    BOOK  n. 
the  nature  of  treaties  (§§  221,  &c.),  it  cannot,  for  instance,  CHAP'  XVIT> 
entitle  a  new  ally  to  a  preference  over  a  more  ancient  ally, 
whose  treaty  has  not  been  confirmed  by  an  oath. 

10.  For  the  same  reason,  and,  all  circumstances  being  in$32i.  10th 
other  respects  equal,  what  is  enjoined  under  a  penalty  claims  Rule' 
a  preference  over  that  which  is  not  enforced  by  one, — and  what 
is  enjoined  under  a  greater  penalty,  over  that  which  is  enforced 
by  a  lesser  ;  for  the  penal  sanction  and  convention  give  addi- 
tional force  to  the  obligation :  they  prove  that  the  object  in 
question  was  more  earnestly  desired,*  and  the  more  so  in  pro- 
portion as  the  penalty  is  more  or  less  severe. 

All  the  rules  contained  in  this  chapter  ought  to  be  com-  g  322.  Ge- 
bined  together,  and  the  interpretation  be  made  in  such  manner  neral  re- 
as  to  accord  with  them  all,  so  far  as  they  are  applicable  to  J^e^o?8 
the  case.  When  these  rules  appear  to  clash,  they  reciprocally  observingau 
counterbalance  and  limit  each  other,  according  to  their  strength  the  preced- 
and  importance,  and  according  as  they  more  particularly  be-  ine rules- 
long  to  the  case  in  question. 


CHAP.  XVIII. 

OF  THE   MODE   OF  TERMINATING  DISPUTES   BETWEEN  NATIONS.  CHAP,  xvnr. 

THE  disputes  that  arise  between  nations  or  their  rulers,  g  323.  Ge- 
originate  either  from  contested  rights  or  from  injuries  received,  neral  direc- 
A  nation  ought  to  preserve  the  rights  which  belong  to  her ; tion.  on  thia 
and  the  care  of  her  own  safety  and  glory  forbids  her  to  sub-  subJeot 
mit  to  injuries.     But  in  fulfilling  the  duty  which  she  owes  to 
herself,  she  must  not  forget  her  duties  to  others.     These  two  [  275  ] 
views,  combined  together,  will  furnish  the  maxims  of  the  law 
of  nations  respecting  the  mode  of  terminating  disputes  be- 
tween different  states. 

What  we  have  said  in  Chap.  I.  IV.  and  V.  of  this  book,  §324. 
dispenses  with  our  proving  here,  that  a  nation  ought  to  do  Eveir  na- 
justice  to  all  others  with  respect  to  their  pretensions,  and  to*ionif 
remove  all  their  just  subjects  of  complaint.     She  is  therefore  g^TsatL 
bound  to  render  to  each  nation  what  is  her  due, — to  leave  her  faction  re- 
in the  peaceable  enjoyment  of  her  rights, — to  repair  any  spiting  the 
damage  that  she  herself  may  have  caused,  or  any  injury  shejl!s*com' 
may  have  done,— to  give  adequate  satisfaction  for  such  injtt- SotLr. 
ries  as  cannot  be  repaired,  and  reasonable  security  against 
any  injury  which  she  has  given  cause  to  apprehend.     These 
are  so  many  maxims  evidently  dictated  by  that  justice  which 

*  This  is  also  the  reason  which  Cicero     ea  [lex]  qua?  diligentissime  sancta  est." 
gives :  "  Nam  maxima  conservanda  est    Cicero,  ubi  supra. 

375 


275  OF   THE   MODE   OF   TERMINATING 

BOOK  ii.    nations  as  well  as  individuals  are,  by  the  law  of  nature,  bound 
cj^xvm.  to  observe. 


g  325.  HOW  Every  one  is  at  liberty  to  recede  from  his  right,  to  relin- 
nations  may  quisn  a  jus^  subject  of  complaint,  and  to  forget  an  injury. 

thofrri»hts  ^Ut  t^ie  ru^er  °f  a  nati°n  *s  not>  in  this  respect,  so  free  as  a 
and  just  private  individual.  The  latter  may  attend  solely  to  the  voice 
complaints,  of  generosity  ;  and,  in  an  affair  which  concerns  none  but  him- 
self alone,  he  may  indulge  in  the  pleasure  which  he  derives 
from  doing  good,  and  gratify  his  love  of  peace  and  quiet. 
The  representative  of  a  nation,  the  sovereign,  must  not  con- 
sult his  own  gratification,  or  suffer  himself  to  be  guided  by 
his  private  inclinations.  All  his  actions  must  be  directed  to 
the  greatest  advantage  of  the  state,  combined  with  the  ge- 
neral interests  of  mankind,  from  which  it  is  inseparable.  It 
behooves  the  prince,  on  every  occasion,  wisely  to  consider  and 
firmly  to  execute,  whatever  is  most  salutary  to  the  state,  most 
conformable  to  the  duties  of  the  nation  towards  other  states,  — 
and,  at  the  same  time,  to  consult  justice,  equity,  humanity, 
sound  policy,  and  prudence.  The  rights  of  the  nation  are  a 
property  of  which  the  sovereign  is  only  the  trustee  ;  and  he 
ought  not  to  dispose  of  them  in  any  other  manner  than  he 
has  reason  to  presume  the  nation  herself  would  dispose  of  them. 
And,  as  to  injuries,  it  is  often  laudable  in  a  citizen  generously 
to  pardon  them  :  he  lives  under  the  protection  of  the  laws  ; 
the  magistrates  are  capable  of  defending  or  avenging  him 
against  those  ungrateful  or  unprincipled  wretches  whom  his 
indulgence  might  encourage  to  a  repetition  of  the  offence.  A 
nation  has  not  the  same  security  :  it  is  seldom  safe  for  her  to 
.  overlook  or  forgive  an  injury,  unless  she  evidently  possess 
sufficient  power  to  crush  the  rash  aggressor  who  has  dared 
to  offend  her.  In  such  a  case,  indeed,  it  will  reflect  glory  on 
her  to  pardon  those  who  acknowledge  their  faults,  — 

f   276  1  Parcere  subjectis,  et  debellare  suporbos  ; 

The  duty  and  she  may  do  it  with  safety.  But  between  powers  that 
of  a  sove-  are  nearly  equal,  the  endurance  of  an  injury  without  insist- 
reign  of  an  jng  on  complete  satisfaction  for  it,  is  almost  always  imputed 
independent^  weaknesg  or  cowardice,  a,nd  seldom  fails  long  to  subject 

suite  to  in-      •  •'••*  /»       i  /» 

sist  on  com-  the  injured  party  to  further  wrongs  of  a  more  atrocious  nature. 

pensation     Why  do  we  often  see  the  very  reverse  of  this  conduct  pursued 

for  wrongs    Dy  those  who  fancy  themselves  possessed  of  souls  so  highly 

^cte"  sub"    exalted  above  the  level  of  the  rest  of  mankind  ?     Scarcely 

can  they  receive  concessions  sufficiently  humble  from  weaker 

states  who  have  had  the  misfortune  to  offend  them  ;  but  to 

those  whom  they  would  find  it  dangerous  to  punish,  they  be- 

have with  greater  moderation. 

?  326.  If  neither  of  the  nations  who  are  engaged   in  a  dispute, 

Means  sug-  Chinks  proper  to  abandon  her  right  or  her  pretensions,  the 
the  law  of  contending  parties  are,  by  the  law  of  nature,  which  recom- 
nature,  for  mends  peace,  concord,  and  charity,  bound  to  try  the  gentlest 


DISPUTES   BETWEEN   NATIONS.  276 

methods  of  terminating  their  differences.     These  are — first,    BOOK  n. 
an  amicable  accommodation.     Let  each  party  coolly  and  can- CHAP-  *Ym- 
didly  examine  the  subject  of  the  dispute,  and  do  justice  to  the  J^™1™*1118 
other ;  or  let  him  whose  right  is  too  uncertain,  voluntarily  putes. 
renounce  it.     There  are  even  occasions  when  it  may  be  pro- 1.  Amica- 
per  for  him  who  has  the  clearer  right,  to  renounce  it,  for  the  ble  accom- 
sake  of  preserving  peace, — occasions,  which  it  is  the  part  of  modatlon- 
prudence  to  discover.     To  renounce  a  right  in  this  manner, 
is  not  abandoning  or  neglecting  it.     People  are  under  no 
obligation  to  you  for  what  you  abandon  :  but  you  gain  a  friend 
in  the  party  to  whom  you  amicably  yield  up  what  was  the 
subject  of  a  dispute. 

Compromise  is  a  second  method  of  bringing  disputes  to  a  §  327.   2. 
peaceable  termination.     It  is  an  agreement,  by  which,  with-  Compro- 
out  precisely  deciding  on  the  justice  of  the  jarring  preten-mise> 
sions,  the  parties  recede  on  both  sides,  and  determine  what 
share  each  shall  have  of  the  thing  in  dispute,  or  agree  to  give 
it  entirely  to  one  of  the  claimants  on  condition  of  certain  in- 
demnifications granted  to  the  other. 

Mediation,  in  which  a  common  friend  interposes  his  good  §  328.  3. 
offices,  frequently  proves  efficacious  in  engaging  the  contend-  Mediation, 
ing  parties  to  meet  each  other  halfway, — to  come  to  a  good 
understanding, — to  enter  into  an  agreement  or  compromise 
respecting  their  rights,  and,  if  the  question  relates  to  an  in- 
jury, to  offer  and  accept  a  reasonable  satisfaction.  The  office 
of  mediator  requires  as  great  a  degree  of  integrity,  as  of  pru- 
dence and  address.  He  ought  to  observe  a  strict  impar- 
tiality ;  he  should  soften  the  reproaches  of  the  disputants,  calm 
their  resentments,  and  dispose  their  minds  to  a  reconcilia- 
tion. His  duty  is  to  favour  well-founded  claims,  and  to 
effect  the  restoration,  to  each  party,  of  what  belongs  to  him  : 
but  he  ought  not  scrupulously  to  insist  on  rigid  justice.  He 
is  a  conciliator,  and  not  a  judge  :  his  business  is  to  procure 
peace  ;  and  he  ought  to  induce  him  who  has  right  on  his  side 
to  relax  something  of  his  pretensions,  if  necessary,  with  a 
view  to  so  great  a  blessing. 

The  mediator  is  not  guarantee  for  the  treaty  which  he  has 
conducted,  unless  he  has  expressly  undertaken  to  guarantee 
it.  That  is  an  engagement  of  too  great  consequence  to  be  [  277  ] 
imposed  on  any  one,  without  his  own  consent  clearly  mani- 
fested. At  present,  when  the  affairs  of  the  sovereigns  of 
Europe  are  so  connected,  that  each  has  an  eye  on  what  passes 
between  those  who  are  the  most  distant,  mediation  is  a  mode 
of  conciliation  much  used.  Does  any  dispute  arise  ?  The 
friendly  powers,  those  who  are  afraid  of  seeing  the  flames 
of  war  kindled,  offer  their  mediation,  and  make  overtures  of 
peace  and  accommodation. 

When  sovereigns  cannot  agree  about  their  pretensions  and  f  329.   4. 
are  nevertheless  desirous  of  preserving  or  restoring  peace,  Arbitration, 
they  sometimes  submit  the  decision  of  their  disputes  to  arbi- 

48  2  o2  377 


277  OF  THE   MODE   OF   TERMINATING 


CHAP.    XVIII. 


trators  chosen  by  common  agreement.  When  once  the  con- 
tending parties  have  entered  into  articles  of  arbitration,  they 
are  bound  to  abide  by  the  sentence  of  the  arbitrators :  they 
have  engaged  to  do  this ;  and  the  faith  of  treaties  should  be 
religiously  observed. 

If,  however,  the  arbitrators,  by  pronouncing  a  sentence 
evidently  unjust  and  unreasonable,  should  forfeit  the  cha- 
racter with  which  they  were  invested,  their  judgment  would 
deserve  no  attention :  the  parties  had  appealed  to  it  only 
with  a  view  to  the  decision  of  doubtful  questions.  Suppose 
a  board  of  arbitrators  should,  by  way  of  reparation  for  some 
offence,  condemn  a  sovereign  state  to  become  subject  to  the 
state  she  has  offended,  will  any  man  of  sense  assert  that  she 
is  bound  to  submit  to  such  decision  ?  If  the  injustice  is  of 
small  consequence,  it  should  be  borne  for  the  sake  of  peace ; 
and  if  it  is  not  absolutely  evident,  we  ought  to  endure  it,  as 
an  evil  to  which  we  have  voluntarily  exposed  ourselves.  For 
if  it  were  necessary  that  we  should  be  convinced  of  the  jus- 
tice of  a  sentence  before  we  would  submit  to  it,  it  would  be 
of  very  little  use  to  appoint  arbitrators. 

There  is  no  reason  to  apprehend,  that,  by  allowing  the 
parties  a  liberty  of  refusing  to  submit  to  a  manifestly  unjust 
and  unreasonable  sentence,  we  should  render  arbitration  use- 
less :  our  decision  is  by  no  means  repugnant  to  the  nature 
of  recognisances  or  arbitration  articles.  There  can  be  no 
difficulty  in  the  affair,  except  in  case  of  the  parties  having 
signed  vague  and  unlimited  articles,  in  which  they  have  not 
precisely  specified  the  subject  of  the  dispute,  or  marked  the 
bounds  of  their  opposite  pretensions.  It  may  then  happen, 
as  in  the  example  just  alleged,  that  the  arbitrators  will  ex- 
ceed their  power,  and  pronounce  on  what  has  not  been  really 
submitted  to  their  decision.  Being  called  in  to  determine 
what  satisfaction  a  state  ought  to  make  for  an  offence,  they 
may  condemn  her  to  become  subject  to  the  state  she  has 
offended.  But  she  certainly  never  gave  them  so  extensive  a 
power ;  and  their  absurd  sentence  is  not  binding.  In  order 
to  obviate  all  difficulty,  and  cut  off  every  pretext  of  which 
fraud  might  make  a  handle,  it  is  necessary  that  the  arbitra- 
tion articles  should  precisely  specify  the  subject  in  dispute, 
the  restrictive  and  opposite  pretensions  of  the  parties,  the 
demands  of  the  one,  and  the  objections  of  the  other.  These 
constitute  the  whole  of  what  is  submitted  to  the  decision  of 
the  arbitrators ;  and  it  is  upon  these  points  alone  that  the 
[  278  ]  parties  promise  to  abide  by  their  judgment.  If,  then,  their 
sentence  be  confined  within  these  precise  bounds,  the  dispu- 
tants must  acquiesce  in  it.  They  cannot  say  that  it  is  mani- 
festly unjust,  since  it  is  pronounced  on  a  question  which  they 
have  themselves  rendered  doubtful  by  the  disordance  of  their 
claims,  and  which  has  been  referred,  as  such,  to  the  decision 
of  the  arbitrators.  Before  they  can  pretend  to  evade  such 

378 


DISPUTES   BETWEEN   NATIONS.  278 

a  sentence,  they  should  prove,  by  incontestable  facts,  that  it    BOOK  n. 
was  the  offspring  of  corruption  or  flagrant  partiality. 

Arbitration  is  a  very  reasonable  mode,  and  one  that  is  per- 
fectly conformable  to  the  law  of  nature,  for  the  decisio?!  of 
every  dispute  which  does  not  directly  interest  the  safety  of 
the  nation.  Though  the  claim  of  justice  may  be  mistaken 
by  the  arbitrators,  it  is  still  more  to  be  feared  that  it  will  be 
overpowered  in  an  appeal  to  the  sword.  The  Swiss  have  had 
the  precaution,  in  all  their  alliances  among  themselves,  and 
even  in  those  they  have  contracted  with  the  neighbouring 
powers,  to  agree  beforehand  on  the  manner  in  which  their 
disputes  were  to  be  submitted  to  arbitrators,  in  case  they 
could  not  adjust  them  in  an  amicable  manner.  (132)  This 
wise  precaution  has  not  a  little  contributed  to  maintain  the 
Helvetic  republic  in  that  flourishing  state  which  secures  her 
liberty,  and  renders  her  respectable  throughout  Europe. 

In  order  to  put  in  practice  any  of  these  methods,  it  is  ne-  g  330.  Con- 
cessary  to  speak  with  each  other,  and  to  confer  together.    Con-  ferences  and 
ferences  and  congresses  are  therefore  a  mode  of  conciliation,  congresses, 
which  the  law  of  nature  recommends  to  nations,  as  well  cal- 
culated to  bring  their  differences  to  an  amicable  termination. 
Congresses  are  assemblies  of  plenipotentiaries  appointed  to 
find  out  means  of  conciliation,  and  to  discuss  and  adjust  the    - 
reciprocal  pretensions  of  the  contending  parties.     To  afford 
the  prospect  of  a  happy  issue  of  their  deliberations,  such 
meetings  should  be  formed  and  directed  by  a  sincere  desire 
of  peace  and  concord.     In  the  present  century,  Europe  has 
witnessed  two  general  congresses, — that  of  Cambray,*  and 
that  of  Soissons,f  both  tedious  farces  acted  on  the  political 
theatre,  in  which  the  principal  performers  were  less  desirous 
of  coming  to  an  accommodation  than  of  appearing  to  desire  it. 

In  order  at  present  to  ascertain  in  what  manner  and  how  §  331.    Dis- 
far  a  nation  is  bound  ta  resort  or  accede  to  these  various  tinction  to 
modes  of  accommodation,  and  which  of  them  she  ought  to j^™**^6" 
prefer,  it  becomes  necessary,  in  the  first  place,  to  distinguish  dlnt^nd1 
between  cases  that  are  evident,  and  those  that  are  doubtful,  doubtful 
Does  the  question  relate  to  a  right  that  is  clear,  certain,  and  cases, 
incontestable  ?    A  sovereign,  if  he  possesses  sufficient  strength, 
may  peremptorily  prosecute  and  defend  that  right,  without  ex- 
posing it  to  the  doubtful  issue  of  an  arbitration.  Shall  he  submit 
to  negotiate  and  compound  for  a  thing  that  evidently  belongs 
to  him,  and  which  is  disputed  without  the  least  shadow  of  jus-  [  279  ] 
tice  ?     Much  less  will  he  subject  it  to  arbitration.     But  he 
ought  not  to  neglect  those  methods  of  conciliation,  which, 


(132)  The   stipulations   between  pri-  parties  as  obligatory,  in  point  of  honour, 

vate  partners  and  others  in  anticipation  to  endeavour  to  arbitrate  the  existing 

of  mere  possible  disputes  is  analogous,  dispute. — C. 

and  though  not  legally  binding,  yet,  in  *  In  1724. 

practice,  in  case  of  differences,  the  mere  -j-  In  1728. 
Itipulation  is  usually  considered  by  the 

379 


279  OF  THE   MODE   OF   TERMINATING 


K  11. 


without  endangering  his  own  right,  may  induce  his  opponent 
CHAP,  xvm.  ^0  ijsten  to  reason,  —  such  as  mediation  and  conferences.  Na- 
ture gives  us  no  right  to  have  recourse  to  forcible  means, 
except  where  gentle  and  pacific  methods  prove  ineffectual.  It 
is  not  permitted  to  be  so  inflexible  in  uncertain  and  doubtful 
questions.  Who  will  dare  to  insist  that  another  shall  imme- 
diately, and  without  examination,  relinquish  to  him  a  dis- 
putable right?  This  would  be  a  means  of  rendering  wars 
perpetual  and  inevitable.  Both  the  contending  parties  may 
be  equally  convinced  of  the  justice  of  their  claims  :  why, 
therefore,  should  either  yield  to  the  other  ?  In  such  a  case, 
they  can  only  demand  an  examination  of  the  question,  pro- 
pose a  conference  or  an  arbitration,  or  offer  to  settle  the  point 
by  articles  of  agreement. 

I  332.  Of  In  the  disputes  that  arise  between  sovereigns,  it  is  more- 
essential  over  necessary  to  make  a  proper  distinction  between  essential 
rights,  and  rights  and  rights  of  inferior  importance  :  for,  according  to 
importance88  *ke  difference  in  the  two  cases,  a  different  line  of  conduct  is 
to  be  pursued.  A  nation  is  under  many  obligations  of  duty 
towards  herself,  towards  other  nations,  and  towards  the  great 
society  of  mankind.  We  know  that  the  duties  we  owe  to 
ourselves  are,  generally  speaking,  paramount  to  those  we  owe 
to  others  ;  but  this  is  to  be  understood  only  of  such  duties  as 
bear  some  proportion  to  each  other.  We  cannot  refuse,  in 
some  degree,  to  forget  ourselves  with  respect  to  interests  that 
are  not  essential,  and  to  make  some  sacrifices,  in  order  to 
assist  other  persons,  and  especially  for  the  greater  benefit  of 
human  society  :  and  let  us  even  remark,  that  we  are  invited 
by  our  own  advantage,  by  our  own  safety,  to  make  these  ge- 
nerous sacrifices  ;  for  the  private  good  of  each  is  intimately 
connected  with  the  general  happiness.  What  idea  should  we 
entertain  of  a  prince  or  a  nation  who  would  refuse  to  give  up 
the  smallest  advantage  for  the  sake  of  procuring  to  the  world 
the  inestimable  blessings  of  peace  ?  Every  power  therefore 
owes  this  respect  to  the  happiness  of  human  society,  to  show 
himself  open  to  every  mode  of  conciliation,  in  questions  re- 
lating to  interests  which  are  neither  essential  nor  of  great 
importance.  If  he  exposes  himself  to  the  loss  of  something 
by  an  accommodation,  by  a  compromise,  or  by  an  arbitration, 
he  ought  to  be  sensible  what  are  the  dangers,  the  evils,  the 
calamities  of  war,  and  to  consider  that  peace  is  well  worth  a 
small  sacrifice. 

But  if  any  one  would  rob  a  nation  of  one  of  her  essential 
rights,  or  a  right  without  which  she  could  not  hope  to  support 
her  national  existence,  —  if  an  ambitious  neighbour  threatens 
[  280  ]  the  liberty  of  a  republic,  —  if  he  attempts  to  subjugate  and 
enslave  her,  —  she  will  take  counsel  only  from  her  own  cou- 
rage. She  will  not  even  attempt  the  mode  of  conferences  on 
so  odious  a  pretension  ;  she  will,  in  such  a  quarrel,  exert  her 
utmost  efforts,  exhaust  every  resource,  and  gloriously  lavish 


DISPUTES  BETWEEN  NATIONS.  280 

her  blood  to  the  last  drop  if  necessary.     To  listen  to  the    BOOK  n. 
smallest  proposition,  is  putting  every  thing  to  the  risk.     On  CHAP-  xvip- 
such  an  occasion  she  may  truly  say — 

Una  salus nullam  sperare  salutem : 

and  if  fortune  prove  unfavourable,  a  free  people  will  prefer 
death  to  servitude.  What  would  have  become  of  Rome,  had 
she  listened  to  timid  counsels,  when  Hannibal  was  encamped 
before  her  walls  ?  The  Swiss,  ever  so  ready  to  embrace  pacific 
measures  or  submit  to  legal  decisions  in  disputes  respecting 
less  essential  points,  have  uniformly  spurned  at  all  idea  of 
compromise  with  those  who  harboured  designs  against  their 
liberty.  They  even  refused  on  such  occasions  to  submit  their 
disputes  to  arbitration,  or  to  the  judgment  of  the  emperors.* 

In  doubtful  causes  which  do  not  involve  essential  points,  ?  333.  How 
if  one  of  the  parties  will  not  accede  either  to  a  conference,  we  acquire 
an  accommodation,  a  compromise,  or  an  arbitration,  the  other  *^?n  *  °e 
has  only  the  last  resource  for  the  defence  of  himself  and  his  COUrse  to 
rights, — an  appeal  to  the  sword ;  and  he  has  justice  on  his  force  in  a 
side  in  taking  up  arms  against  so  untractable  an  adversary,  doubtful 
For,  in  a  doubtful  cause,  we  can  only  demand  all  the  reason- cause' 
able  methods  of  elucidating  the  question,  and  of  deciding  or 
accommodating  the  dispute  (§  331). 

But  let  us  never  lose  sight  of  what  a  nation  owes  to  her  $  334.  and 
own  security,  nor  of  that  prudence  by  which  she  ought  con- even  with- 
stantly  to  be  directed.  To  authorize  her  to  have  recourse  to 
arms,  it  is  not  always  necessary  that  every  conciliatory  mea- 
sure  be  first  expressly  rejected :  it  is  sufficient  that  she  have 
every  reason  to  believe  that  the  enemy  would  not  enter  into 
those  measures  with  sincerity, — that  they  could  not  be  brought 
to  terminate  in  a  happy  result, — and  that  the  intervening 
delay  would  only  expose  her  to  a  greater  danger  of  being  over- 
powered. This  maxim  is  incontestable;  but  its  application 
in  practice  is  very  delicate.  A  sovereign  who  would  not  be 
considered  as  a  disturber  of  the  public  peace,  will  not  be  in- 
duced abruptly  to  attack  him  who  has  not  refused  to  accede 
to  pacific  measures,  unless  he  be  able  to  justify  his  conduct 
in  the  eyes  of  all  mankind,  by  proving  that  he  has  reason  to 
consider  those  peaceable  appearances  as  an  artifice  employed 
for  the  purpose  of  amusing  him,  and  taking  him  by  surprise. 
To  make  his  bare  suspicions  serve  as  sufficient  authority  for 
such  a  step,  would  be  sapping  every  foundation  on  which 
rests  the  security  of  nations. 

The  faith  of  one  nation  has  ever  been  suspected  by  an- 

*  When,  in  the  year  1355,  they  sub-  should  not  touch  the  liberty  of  those 

mitted  their  differences  with  the  dukes  countries,  nor  their   alliance  with   the 

of  Austria,  in  relation  to  the  countries  other  cantons.     Tschudi,  p.  429,  Ac.— 

of  Zug  and  Glaris,  to  the  arbitration  Stettler,  p.  77.— History  of  the  Helvetic 

of  Charles  IV.,  it  was  not  without  this  Confederacy,  by  De  Watteville,  book  iv. 

preliminary  condition,  that  the  emperor  at  the  beginning. 

381 


280  OF   THE   MODE   OF  TERMINATING 

BOOK  n.  other,  and  sad  experience  but  too  plainly  proved  that  this  dis- 
CHAP.  xvin.  f.rusf.  ig  noj.  ill-founded.  Independence  and  impunity  are  a 
^  335.  Vo-  touchstone  that  discovers  the  alloy  of  the  human  heart :  the 
luntary  law  private  individual  assumes  the  character  of  candour  and  pro- 
on  thhumb  -T '  an<^>  *n  Default  °^  tne  reality,  his  dependence  frequently 
ject  obliges  him  to  exhibit  in  his  conduct  at  least  the  appearance 

[  281  ]  °f  those  virtues.  The  great  man,  who  is  independent,  boasts 
still  more  of  them  in  his  discourse ;  but  as  soon  as  he  finds 
himself  possessed  of  superior  strength,  he  scarcely  endeavours 
to  save  appearances,  unless  his  heart  be  moulded  of  materials 
which,  unfortunately,  are  very  rare  indeed :  and,  if  powerful 
interest  intervene,  he  will  give  himself  a  latitude  in  the  pur- 
suit of  measures  that  would  cover  a  private  person  with  shame 
and  infamy.  When,  therefore,  a  nation  pretends  that  it  would 
be  dangerous  for  her  to  attempt  pacific  measures,  she  can  find 
abundance  of  pretexts  to  give  a  colour  of  justice  to  her  pre- 
cipitation in  having  recourse  to  arms.  And  as,  in  virtue  of 
the  natural  liberty  of  nations,  each  one  is  free  to  judge  in  her 
own  conscience  how  she  ought  to  act,  and  has  a  right  to  make 
her  own  judgment  the  sole  guide  of  her  conduct  with  respect 
to  her  duties  in  every  thing  that  is  not  determined  by  the 
perfect  rights  of  another  (Prelim.  §  20),  it  belongs  to  each 
nation  to  judge  whether  her  situation  will  admit  of  pacific 
measures,  before  she  has  recourse  to  arms.  Now,  as  the  vo- 
luntary law  of  nations  ordains,  that,  for  these  reasons,  we 
should  esteem  lawful  whatever  a  nation  thinks  proper  to  do 
in  virtue  of  her  natural  liberty  (Prelim.  §  21),  by  that  same 
voluntary  law,  nations  are  bound  to  consider  as  lawful  the 
conduct  of  that  power  who  suddenly  takes  up  arms  in  a  doubt- 
ful cause,  and  attempts  to  force  his  enemy  to  come  to  terms, 
without  having  previously  tried  pacific  measures.  Louis  XIV. 
was  in  the  heart  of  the  Netherlands  before  it  was  known  in 
Spain  that  he  laid  claim  to  the  sovereignty  of  a  part  of  those 
rich  provinces  in  right  of  the  queen  his  wife.  The  king 
of  Prussia,  in  1741,  published  his  manifesto  in  Silesia,  at  the 
head  of  sixty  thousand  men.  Those  princes  might  have  wise 
and  just  reasons  for  acting  thus  :  and  this  is  sufficient  at  the 
tribunal  of  the  voluntary  law  of  nations.  But  a  thing  which 
that  law  tolerates  through  necessity,  may  be  found  very  un- 
just in  itself:  and  a  prince  who  puts  it  in  practice  may  render 
himself  very  guilty  in  the  sight  of  his  own  conscience,  and 
very  unjust  towards  him  whom  he  attacks,  though  he  is  not 
accountable  for  it  to  other  nations,  as  he  cannot  be  accused 
of  violating  the  general  rules  which  they  are  bound  to  observe 
towards  each  other.  But  if  he  abuses  this  liberty,  he  gives 
all  nations  cause  to  hate  and  suspect  him ;  he  authorizes  them 
to  confederate  against  him ;  and  thus,  while  he  thinks  he  is  pro- 
moting his  interests,  he  sometimes  irretrievably  ruins  them. 

A  sovereign  ought,  in  all  his  quarrels,  to  entertain  a  sin- 
cere desire  of  rendering  justice  and  preserving  peace.     He 

382 


DISPUTES   BETWEEN   NATIONS.  281 

is  bound,  before  he  take  up  arms,  and  also  after  having  taken    BOOK  n. 
them  up,  to  offer  equitable  conditions;  and  then  alone  he 


is  justifiable  in  appealing  to  the  sword  against  an  obstinate  ? 336- 
enemy  who  refuses  to  listen  to  the  voice  of  justice  or  equity,  f^1^^  to 

It  is  the  business  of  the  appellant  to  prove  his  right ;  for  Coffered!  ° 
he  ought  to  show  a  good  foundation  for  demanding  a  thing  [  282  ] 
which  he  does  not  possess.     He  must  have  a  title :  and  peo-  §  337.    PCS- 
pie  are  not  obliged  to  respect  that  title  any  farther  than  he  sfssor's 
shows  its  validity.      The  possessor   may  therefore  remain  "^.^ 
in  possession  till  proof  be  adduced  to  convince  him  that  his  casegt 
possession  is  unjust.     As  long  as  that  remains  undone,  he 
has  a  right  to  maintain  himself  in  it,  and  even  to  recover  it 
by  force,  if  he  has  been  despoiled  of  it.     Consequently  it  is 
not  allowable  to  take  up  arms  in  order  to  obtain  possession 
of  a  thing  to  which  the  claimant  has  but  an  uncertain  or 
doubtful  right.     He  is  only  justifiable  in  compelling  the  pos- 
sessor, by  force  of  arms  if  necessary,  to  come  to  a  discussion 
of  the  question,  to  accede  to  some  reasonable  mode  of  deci- 
sion or  accommodation,  or,  finally,  to  settle  the  point  by  arti- 
cles of  agreement  upon  an  equitable  footing  (§  333). 

If  the  subject  of  the  dispute  be  an  injury  received,  the  g  335.  HOW 
offended  party  ought  to  follow  the  rules  we  have  just  esta-  reparation  of 
blished.  His  own  advantage,  and  that  of  human  society,  ™™ ^ » 
require,  that,  previous  to  taking  up  arms,  he  should  try  every 
pacific  mode  of  obtaining  either  a  reparation  of  the  injury, 
or  a  just  satisfaction,  unless  there  be  substantial  reasons  to 
dispense  with  his  recurrence  to  such  measures  (§  334).  This 
moderation,  this  circumspection,  is  the  more  becoming,  and 
in  general  even  indispensable,  as  the  action  which  we  look 
upon  as  an  injury  does  not  always  proceed  from  a  design  to 
offend  us,  and  is  sometimes  rather  a  mistake  than  an  act  of 
malice.  It  even  frequently  happens  that  the  injury  is  done 
by  inferior  persons,  without  their  sovereign  having  any  share 
in  it :  and  on  these  occasions  it  is  natural  to  presume  that  he 
will  not  refuse  us  a  just  satisfaction.  When  some  petty  offi- 
cers, not  long  since,  violated  the  territory  of  Savoy  in  order 
to  carry  off  from  thence  a  noted  smuggling  chief,  the  King 
of  Sardinia  caused  his  complaints  to  be  laid  before  the  court 
of  France ;  and  Louis  XV.  thought  it  no  derogation  to  his 
greatness  to  send  an  ambassador  extraordinary  to  Turin  to 
give  satisfaction  for  that  violence.  Thus  an  affair  of  so  deli- 
cate a  nature  was  terminated  in  a  manner  equally  honour- 
able to  the  two  kings. 

When  a  nation  cannot  obtain  justice,  whether  for  a  wrong  I  339.    Re- 
or  an  injury,  she  has  a  right  to  do  herself- justice.     But  be-  taiiation. 
fore  she  declares  war  (of  which  we  shall  treat  in  the  follow- 
ing book),  there  are  various  methods  practised  among  nations, 
which  remain  to  be  treated  of  here.     Among  those  methods 
of  obtaining  satisfaction,  has  been  reckoned  what  is  called 
the  law  of  retaliation,  according  to  which  we  make  another 


282  OF   THE   MODE   OF   TERMINATING 

BOOK  ii.  suffer  precisely  as  much  evil  as  he  has  done.  Many  have 
CHAP,  xvin.  extone(i  t}iat  jaw?  as  being  founded  in  the  strictest  justice: — 
and  can  we  be  surprised  at  their  having  proposed  it  to  princes, 
[  283  ]  since  they  have  presumed  to  make  it  a  rule  even  for  the  deity 
himself?  The  ancients  called  it  the  law  of  Rhadamanthus. 
The  idea  is  wholly  derived  from  the  obscure  and  false  notion 
which  represents  evil  as  essentially  and  in  its  own  nature  wor- 
thy of  punishment.  We  have  shown  above  (Book  I.  §  169), 
what  is  the  true  origin  of  the  right  of  punishing  ;*  whence 
we  have  deduced  the  true  and  just  proportion  of  penalties 
(Book  I.  §  171).  Let  us  say,  then,  that  a  nation  may  punish 
another  which  has  done  her  an  injury,  as  we  have  shown 
above  (see  Chap.  IV.  and  VI.  of  this  book),  if  the  latter  re- 
fuses to  give  her  a  just  satisfaction :  but  she  has  not  a  right 
to  extend  the  penalty  beyond  what  her  own  safety  requires. 
Retaliation,  which  is  unjust  between  private  persons,  would 
be  much  more  so  between  nations,  because  it  would,  in  the  lat- 
ter case,  be  difficult  to  make  the  punishment  fall  on  those  who 
had  done  the  injury.  What  right  have  you  to  cut  off  the 
nose  and  ears  of  the  ambassador  of  a  barbarian  who  had 
treated  your  ambassador  in  that  manner  ?  As  to  those  repri- 
sals in  time  of  war  which  partake  of  the  nature  of  retalia- 
tion, they  are  justified  on  other  principles ;  and  we  shall 
speak  of  them  in  their  proper  place.  The  only  truth  in  this 
idea  of  retaliation  is,  that,  all  circumstances  being  in  other 
respects  equal,  the  punishment  ought  to  bear  some  proportion 
to  the  evil  for  which  we  mean  to  inflict  it, — the  very  object 
and  foundation  of  punishment  requiring  thus  much. 
|  340.  Va-  It  is  not  always  necessary  to  have  recourse  to  arms,  in 
rious  modes  order  to  punish  a  nation.  The  offended  party  may,  by  way 
of  punish-  of  punishmenf  deprive  her  of  the  privileges  she  enjoyed  in 

ing,  without  ..*,..  \  ft  '^il 

having  re-  nis  dominions, — seize  on  some  ot  her  property,  if  he  has  an 
course  to  opportunity, — and  detain  it  till  she  has  given  him  sufficient 
arms.  satisfaction. 

g  341.  Re-  When  a  sovereign  is  not  satisfied  with  the  manner  in  which 
tortion.  nig  subjects  are  treated  by  the  laws  and  customs  of  another 
nation,  he  is  at  liberty  to  declare  that  he  will  treat  the  sub- 
jects of  that  nation  in  the  same  manner  as  his  are  treated. 
This  is  what  is  called  retortion.  There  is  nothing  in  this, 
but  what  is  conformable  to  justice  and  sound  policy.  No  one 
can  complain  on  receiving  the  same  treatment  which  he  gives 
to  others.  Thus  the  king  of  Poland,  elector  of  Saxony,  en- 
forces the  law  of  escheatage  only  against  the  subjects  of  those 
princes  who  make  the  Saxons  liable  to  it.  The  retortion  may 
also  take  place  with  respect  to  certain  regulations,  of  which 
we  have  no  right  to  complain,  and  which  we  are  even  obliged 
to  approve,  though  it  is  proper  to  guard  against  their  effect 

*  "  Nam,  ut  Plato  ait,  nemo  prudena  punit  quia  peccatum  est,  sed,  ne  pecce- 
tur."    Seneca,  de  Ira. 


DISPUTES   BETWEEN   NATIONS.  288 

by  imitating  them.     Such  are  the  orders  relating  to  the  im-    BOOK  n. 
portation  or  exportation  of  certain  commodities  or  merchan- CHAP>  XTm> 
dise.     On  the  other  hand,  circumstances  frequently  forbid  us 
to  have  recourse  to  retortion.     In  this  respect,  each  nation 
may  act  according  to  the  dictates  of  her  own  prudence. 

Reprisals  are  used  between  nation  and  nation  in  order  to  do  §  342.   Re- 
themselves  justice  when  they  cannot  otherwise  obtain  it.  (133)Prisal3- 
If  a  nation  has  taken  possession  of  what  belongs  to  another,— 
if  she  refuses  to  pay  a  debt,  to  repair  an  injury,  or  to  gives 
adequate  satisfaction  for  it, — the  latter  may  seize  something  [  284  ] 
belonging  to  the  former,  and  apply  it  to  her  own  advantage 
till  she  obtains  payment  of  what  is  due  to  her,  together  with 
interest  and  damages,  or  keep  it  as  a  pledge  till  she  has  re- 
ceived ample  satisfaction.     In  the  latter  case,  it  is  rather  a 
stoppage  or  a  seizure,  than  reprisals :  but  they  are  frequently 
confounded  in  common  language.     The  effects  thus  seized  on 
are  preserved  while  there  is  any  hope  of  obtaining  satisfac- 
tion or  justice.     As  soon  as  that  hope  disappears,  they  are 
confiscated,  and  then  the  reprisals  are  accomplished.     If  the 
two  nations,  upon  this  ground  of  quarrel,  come  to  an  open 
rupture,  satisfaction  is  considered  as  refused  from  the  mo- 
ment that  war  is  declared  or  hostilities  commenced ;  and  then 
also  the  effects  seized  may  be  confiscated. 

It  is  only  upon  evidently  just  grounds,  or  for  a  well-ascer-  §  343-  ^a? 
tained  and  undeniable  debt,  that  the  law  of  nations  allows  usj^  ^^l™ 
to  make  reprisals.     For  he  who  advances  a  doubtful  preten-  tnem  laj!,_ 
sion,  cannot  in  the  first  instance  demand  any  thing  more  than  ful. 
an  equitable  examination  of  his  right.     In  the  next  place, 
before  he  proceed  to  such  extremities,  he  should  be  able  to 
show  that  he  has  ineffectually  demanded  justice,  or  at  least 
that  he  has  every  reason  to  think  it  would  be  in  vain  for  him 
to  demand  it.     Then  alone  does  it  become  lawful  for  him  to 
take  the  matter  into  his  own  hands,  and  do  himself  justice.    It 
would  be  too  inconsistent  with  the  peace,  the  repose,  and  the 
safety  of  nations,  with  their  mutual  commerce,  and  the  duties 
which  bind  them  to  each  other,  that  each  one  should  be  author- 
ized to  have  immediate  recourse  to  violent  measures,  without 
knowing  whether  there  exist  on  the  other  side  a  disposition  to 
do  her  justice,  or  to  refuse  it. 

But,  in  order  perfectly  to  understand  this  article,  it  must 
be  observed,  that  if,  in  a  disputable  case,  our  adversary  either 
refuses  to  pursue,  or  artfully  evades  the  necessary  steps  for 
bringing  the  matter  to  the  proof, — if  he  does  not  candidly 
and  sincerely  accede  to  some  pacific  mode  of  terminating  the 
dispute, — especially  if  he  is  foremost  in  adopting  violent  mea- 
sures,— he  gives  justice  to  our  cause  which  before  was  proble- 
matical: we  may  then  have  recourse  to  reprisals,  or  the 

(133)  See  further,  as  to  reprisals  and  thereon,  1  Chitty's  Commercial  Law, 
letters  of  marque,  and  English  decisions  418 — 423. — C. 

49  2  H  385 


284  OF  THE   MODE   OF   TERMINATING 

BOOK  n.    seizure  of  his  effects,  in  order  to  compel  him  to  embrace  the 
PHAP.  xvm- method8  of  conciliation  which  the  law  of  nature  prescribes. 
This  is  the  last  remaining  effort  previous  to  a  commencement 
of  open  hostilities. 

§  344.  Upon  We  have  observed  above  (§  81),  that  the  wealth  of  the  citi- 
what  effects  zens  constitutes  a  part  of  the  aggregate  wealth  of  a  nation, — 
^eTi34)S  tnat>  between  state  and  state,  the  private  property  of  the 
members  is  considered  as  belonging  to  the  body,  and  is  an- 
swerable for  the  debts  of  that  body  (§  82):  (134)  whence  it 
follows,  that  in  reprisals  we  seize  on  the  property  of  the  sub- 
ject just  as  we  would  on  that  of  the  state  or  sovereign. 
Every  thing  that  belongs  to  the  nation  is  subject  to  reprisals, 
whenever  it  can  be  seized,  provided  it  be  not  a  deposit  in- 
trusted to  the  public  faith.  As  it  is  only  in  consequence  of 
that  confidence  which  the  proprietor  has  placed  in  our  good- 
[  285  ]  faith,  that  we  happen  to  have  such  deposit  in  our  hands,  it 
ought  to  be  respected,  even  in  case  of  open  war.  Such  is 
the  conduct  observed  in  France,  England,  and  elsewhere, 
with  respect  to  the  money  which  foreigners  have  placed  in 
the  public  funds. 

j  345.  Tke  He  who  makes  reprisals  against  a  nation  on  the  property 
state  ought  of  fa  members  indiscriminately,  cannot  be  taxed  with  seizing 
8ate°those  ^  property  of  an  innocent  person  for  the  debt  of  another : 
who  suffer  for,  in  this  case,  the  sovereign  is  to  compensate  those  of  his 
by  reprisals,  subjects  on  whom  the  reprisals  fall ;  it  is  a  debt  of  the  state 
or  nation,  of  which  each  citizen  ought  only  to  pay  his  quota.* 
g  34»,  The  It  is  only  between  state  and  state  that  all  the  property 
°^  t"le  individuals  is  considered  as  belonging  to  the  nation. 
Sovereigns  transact  their  affairs  between  themselves ;  they 

(134!)  The  ancient  law  of  nations  payment  la  suspended  during  the  war, 
perhaps  was  so;  Attorney -General  v.  and  revives  again  on  the  return  of 
Weeden,  Parko's  Rep.  267;  but  see  peace.  1  Rob.  Rep.  196;  2  Rob.  Rep. 
post,  book  fii.  chap.  v.  §  77,  p.  323,  as  200.  Ex  parte  Bomsmaker,  13  Ves.  J. 
to  the  change  in  practice.  See  fur-  71.  Furlado  v.  Rodgen,  3  Bos.  &  Pul. 
ther,  Chitty's  Commercial  Law,  421,  191.  Antoine  v.  Morcsfand,  6  Taunt. 
423,  425.  $  The  right  is  undoubted.  239.  Brandon  v.  Curling,  4  East,  410. 
The  Emulom,  1  <Ja!L  Rep.  576— see  Emerigon,  vol.  1,  p.  567.  Marlon's  L. 
the  authorities,  American  and  Foreign,  N.  277.  J  It  is  the  modern  usage,  but 
cited  by  St»ry,  J.,  and  his  remarks  on  it  does  not  constitute  a  rule,  limicn  v. 
the  opinion  of  Vattel.%  But  such  an-  The  United  States,  8  Cranch,  110.} 
dent  law  of  nations,  with  respect  to  See  further,  Wolf  v.  Ojcliolm,  6  Maule 
•confiscation  and  reprisals,  has  in  more  &  Selw.  92,  where  an  ordinance  in 
modern  times  been  greatly  relaxed,  and  Denmark  for  confiscating  private  debts 
indeed  treaties  usually  provide  that,  in  and  property  was  held  illegal  and  in- 
case of  war,  the  property  of  private  valid. — C. 

Individuals  of  each  state  shall  be  pro-  *  On   the  subject  of   reprisals,  it  is 

tooted,  and  ample   time   for  their  re-  necessary  to    observe,   that    when    we 

moral  bo  allowed.     But  independently  adopt  that  expedient,  as  being  a  gentler 

«f  such  express  treaties,  and  by  the  ge-  mode  of  proceeding  than  that  of  war, 

ueral  modern  law  of  nations,  the  right  the  reprisals  ought  not  to  be  general. 

to   debts  and  choses  In  actions  is  not  The    grand    pensionary  Do   Witt  very 

forfeited  by  way  of  reprisal  or  other-  properly  remarked,  "  I  do  not  see  any 

wise  on    the  breaking  out  of  war,  but  difference  between  general  reprisals  and 

merely  the  remedy  or  right  to  enforce  o|»ca  wax." 
586 


DISPUTES   BETWEEN   NATIONS.  285 

carry  on  business  with  each  other  directly,   and  can  only    BOOK  n. 
consider  a  foreign  nation  as  a  society  of  men  who  have  but  one  CHAP-  xym- 
common  interest.     It  belongs  therefore  to  sovereigns  alone  order  rePri- 
to  make  and  order  reprisals  on  the  footing  we  have  just  de- sals> 
scribed.     Besides,  this  violent  measure  approaches  very  near 
to  an  open  rupture,  and  is  frequently  followed  by  one.     It  is, 
therefore,  an  affair  of  too  serious  a  nature  to  be  left  to  the 
discretion  of  private  individuals.     And  accordingly  we  see, 
that  in  every  civilized  state,  a  subject  who  thinks  himself 
injured  by  a  foreign  nation,  has  recourse  to  his  sovereign,  in  Letters  of 
order  to  obtain  permission  to  make  reprisals.     This  is  what  marciae- 
the  French  call  applying  for  letters  of  marque.  (135) 

We  may  make  reprisals  against  a  nation  not  only  for  the  §  347.    Re- 
actions of  the  sovereign,  but  also  for  those  of  his  subjects :  P"*als 
and  this  may  take  place  when  the  state  or  the  sovereign  Par~  nf timffo 
ticipates  in  the  act  of  his  subject,  and  takes  it  upon  himself,  actions  of 
which  he  may  do  in  several  ways,  as  we  have  shown  in  Chap,  its  subjects, 
VI.  of  this  Book.  and  in  fa- 

in the  same   manner  the  sovereign  demands  justice,  or  ^j^ the 
makes  reprisals,  not  only  for  his  own  concerns,  but  also  for  gubjects. 
those  of  his  subjects,  whom  he  is  bound  to  protect,  and  whose 
cause  is  that  of  the  nation. 

But  to  grant  reprisals  against  a  nation  in  favour  of  fo-  §  348.  But 
reigners,  is  to  set  himself  up  as  a  judge  between  that  nation  not  in 
and  those  foreigners ;  which  no  sovereign  has  a  right  to  do. 
The  cause  of  reprisals  ought  to  be  just :  they  ought  even  to 
be  grounded  on  a  denial  of  justice, — either  an  actual  denial, 
or  one  which  there  is  good  reason  to  apprehend  (§  343).  Now, 
what  right  have  we  to  judge  whether  the  complaint  of  a 
stranger  against  an  independent  state  is  just,  if  he  has  really 
been  denied  justice  ?  If  it  be  objected,  that  we  may  espouse 
the  quarrel  of  another  state  in  a  war  that  appears  to  us  to  be 
just, — to  assist  her,  and  even  to  unite  with  her, — the  case  is 
different.  In  granting  succours  against  a  nation,  we  do  not  [  286  ] 
detain  her  property  or  her  people  that  happen  to  be  within 
our  territories  under  the  public  faith ;  and  in  declaring  war 
against  her,  we  suffer  her  to  withdraw  her  subjects  and  her 
effects,  as  will  hereafter  appear.  In  the  case  of  reprisals 
granted  to  our  own  subjects,  a  nation  cannot  complain  that 
we  violate  the  public  faith  in  seizing  on  her  people  or  her 
property ;  because  we  are  under  no  other  obligation  to  grant 
security  to  that  property  and  those  people,  than  what  arises 
from  a  reasonable  supposition  that  their  nation  will  not,  in 
the  first  instance,  violate,  with  respect  to  us  or  our  subjects, 
the  rules  of  justice  which  nations  ought  to  observe  towards 
each  other.  If  she  violate  them,  we  have  a  right  to  obtain 
satisfaction ;  and  the  mode  of  reprisals  is  more  easy,  safe, 
and  mild,  than  that  of  war.  We  cannot  urge  the  same  argu- 

(135)  As   to   decisions  on  letters  of     Law,    418—422.    Chilly's   L.   N.  73— 
marque,   see     1    Chitty's     Commercial    86. — C. 

387 


286  OF   THE   MODE   OF   TERMINATING 

BOOK  ii.  ments  in  justification  of  reprisals  ordered  in  favour  of  foreign- 
CHAI>.  xvni.  erg>  por  the  security  we  owe  to  the  subjects  of  a  foreign 
power  does  not  depend,  as  a  condition,  on  the  security  which 
that  power  shall  grant  to  all  other  nations,  to  people  who  do 
not  belong  to  us,  and  are  not  under  our  protection.  Eng- 
land having,  in  1662,  granted  reprisals  against  the  United 
Provinces  in  favour  of  the  knights  of  Malta,*  the  states  of 
Holland  asserted,  with  good  reason,  that,  according  to  the 
law  of  nations,  reprisals  can  only  be  granted  to  maintain  the 
rights  of  the  state,  and  not  for  an  affair  in  which  the  nation 
has  no  concern.f 

g  349.  Those      The  individuals,  who  by  their  actions  have  given  cause  for 
who  have     just  reprisals,  are  bound  to  indemnify  those  on  whom  they 
given  cause  faft  .  an(j  ^g  80Vereign  ought  to  compel  them  to  do  it.     For 
oughuTL-  we  are  under  an  obligation  to  repair  the  damage  we  have  oc- 
demnify       casioned  by  our  own  fault.     And,  although  the  sovereign,  by 
those  who    refusing  justice  to  the  offended  party,  has  brought  on  the 
fer  by      reprisals  against  his  subjects,  those  who  were  the  first  cause 
of  them  do  not  become  the  less  guilty :  the  fault  of  the  sove- 
reign does  not  exempt  them  from  repairing  the  consequences 
of  theirs.     However,  if  they  were  ready  to  give  satisfaction 
to  the  party  whom  they  had  injured  or  offended,  and  their 
sovereign  has  prevented  their  doing  it,  they  are  not  bound  to 
do  any  thing  more  in  that  case,  than  they  would  before  have 
been  obliged  to  do  in  order  to  prevent  the  reprisals ;  and  it 
is  the  sovereign's  duty  to  repair  the  additional  damage,  which 
is  the  consequence  of  his  own  fault  (§  345). 

I  350.  What     We  have  said  (§  343)  that  we  ought  not  to  make  reprisals, 

may  be        except  when  we  are  unable  to  obtain  justice.     Now,  justice 

deemed  a     jg  refuse(j  jn  several  ways : — First,  by  a  denial  of  justice, 

'us'tice  *°  °  ProPerty  so  called,  or  by  a  refusal  to  hear  your  complaints 

or  those  of  your  subjects,  or  to  admit  them  to  establish  their 

right  before  the  ordinary  tribunals.      Secondly,  by  studied 

[  287  ]  delays,  for  which   no   good  reasons   can  be  given — delays 

*  On  that  subject,  the  grand  pen-  except  in  case  of  an  open  denial  of  jus- 
sionary  De  Witt  wrote  as  follows: —  tice.  Finally,  it  is  also  evident,  that, 
"  Nothing  can  be  more  absurd  than  even  in  case  of  a  denial  of  justice,  ho 
that  grant  of  reprisals :  for,  to  say  no-  cannot  empower  his  subjects  to  make 
thing  of  its  proceeding  from  a  board  reprisals,  until  he  has  repeatedly  de- 
of  admiralty,  who  have  no  power  to  manded  justice  for  them,  and  added, 
grant  it  without  infringing  on  the  that,  in  the  event  of  a  refusal,  he  will 
sovereign  authority  of  their  prince,  it  be  obliged  to  grant  them  letters  of 
is  evident  that  no  sovereign  can  grant  marque  and  reprisal."  From  the  answers 
or  make  reprisals,  except  for  the  de-  of  M.  Boreel,  it  appears  that  this  con- 
fence  or  indemnification  of  his  own  duct  of  the  British  admiralty  was 
subjects,  whom  he  is,  in  the  sight  of  strongly  condemned  by  the  court  of 
God,  bound  to  protect;  but  he  never  France.  The  king  of  England  testified 
can  grant  reprisals  in  favour  of  any  his  disapprobation  of  it,  and  gave  orders 
foreigner  who  is  not  under  his  protec-  for  the  release  of  the  Duteh  vessels 
,  tion,  and  with  whose  sovereign  he  has  whose  seizure  had  been  permitted  by 
not  any  engagement  to  that  effect,  ex  way  of  reprisal. — Edit.  1797. 
pacto  vel  fcedere.  Besides,  it  is  certain  f  See  Bynckershoek's  Competent 
that  reprisals  ought  not  to  bo  granted  Judge  of  Embassadors,  chap.  xxii. 
388 


DISPUTES   BETWEEN   NATIONS.  287 

equivalent  to  a  refusal,  or  still  more  ruinous.  Thirdly,  by  BOOK  n. 
an  evidently  unjust  and  partial  decision.  But  it  is  necessary  cnAP-  XVI": 
that  this  injustice  should  be  manifest  and  palpable.  In  all 
cases  susceptible  of  doubt,  a  sovereign  ought  not  to  listen  to 
the  complaints  of  his  subjects  against  a  foreign  tribunal,  nor 
to  attempt  to  screen  them  from  the  effects  of  a  sentence  passed 
in  due  form :  for  that  would  be  the  means  of  exciting  continual 
troubles.  The  law  of  nations  directs  that  states  should  re- 
ciprocally pay  that  kind  of  deference  to  each  other's  juris- 
diction, for  the  same  reason  as  the  civil  law  ordains,  within 
the  state,  that  every  definitive  sentence,  passed  in  due  form, 
shall  be  esteemed  just.  Between  nation  and  nation  the  obli- 
gation is  neither  so  express  nor  so  extensive  :  but  it  cannot  be 
denied,  that  it  is  highly  conducive  to  their  peace  and  con- 
formable to  their  duties  towards  human  society,  to  oblige 
their  subjects,  in  all  doubtful  cases,  and,  unless  where  there 
is  a  manifest  wrong  done  to  them,  to  submit  to  the  sentences 
of  the  foreign  tribunals  before  which  their  causes  have  been 
tried.  (See  above,  §  84). 

As  we  may  seize  the  things  which  belong  to  a  nation,  in  $  351.  Sub- 
order to  compel  her  to  do  justice,  we  may  equally,  for  the  jects  arrest- 
same  reason,  arrest   some  of  her  citizens,  and  not  release ed  by  *** 
them  till  we  have  received  full  satisfaction.     This  is  what  the 
Greeks  called  Androlepsia.*     At  Athens  the  law  permitted 
the  relatives  of  him  who  had  been  assassinated  in  a  foreign 
country,  to  seize  three  of  the  inhabitants  of  that  country, 
and  to  detain  them  till  the  murderer  was  punished  or  delivered 
up.f     But,  in  the  practice  of  modern  Europe,  this  method  is 
seldom  resorted  to,  except  with  a  view  to  obtain  satisfaction 
for  an  injury  of  the  same  nature — that  is  to  say,  to  compel 
a  sovereign  to  release  a  person  whom  he  detains  unjustly. 

The  persons,  however,  who  are  thus  arrested,  being  detained 
only  as  a  security,  or  pledge,  in  order  to  oblige  a  nation  to 
do  justice — if  their  sovereign  obstinately  persists  in  refusing 
it,  we  cannot  take  away  their  lives,  or  inflict  any  corporal 
punishment  upon  them,  for  a  refusal  of  which  they  are  not 
guilty.  Their  property,  their  liberty  itself,  may  be  staked 
for  the  debts  of  the  state ;  but  not  their  lives,  of  which  man 
has  not  the  power  of  disposing.  A  sovereign  has  no  right  to 
put  to  death  the  subjects  of  a  state  which  has  done  him  an 
injury,  except  when  they  are  engaged  in  war ;  and  we  shall 
see,  elsewhere,  what  it  is  that  gives  him  that  right. 

But  the  sovereign  is  authorized  to  employ  forcible  means  \  352.  Our 
against  those  who  resist  him  in  the  exertion  of  his  right,  andr!ghtasainst 
to  pursue  such  means  as  far  as  is  necessary  to  overcome  their tho 
unjust  resistance.  It  is  therefore  lawful  to  repel  those  who 
undertake  to  oppose  the  making  of  just  reprisals :  and  if,  for 
that  purpose,  it  be  necessary  to  proceed  even  so  far  as  to 

*  A*(5poAij^««,  seizure  of  men.  f  Demosthenes,  Orat  adv.  Aristocrat 

H2  389 


288  OF   THE   MODE   OF   TERMINATING 

BOOK  n.  put  them  to  death,  the  whole  blame  of  that  misfortune  is  im- 
CHAP.  xvur.  putable  to  their  unjust  and  inconsiderate  resistance.  In  such 
a  case,  Grotius  would  have  us  rather  abstain  from  making 
reprisals.*  Between  private  persons,  and  for  things  that  are 
not  of  the  highest  importance,  it  is  certainly  worthy,  not  only 
of  a  Christian,  but,  in  general,  of  every  man  of  principle, 
rather  to  abandon  his  right  than  to  kill  the  person  who  un- 
justly resists  him.  But,  between  sovereigns,  the  case  is  other- 
wise. To  suffer  themselves  to  be  bullied,  would  be  attended 
with  consequences  of  too  serious  a  nature.  The  true  and  just 
welfare  of  the  state  is  the  grand  rule :  moderation  is  ever  lau- 
dable in  itself;  but  the  conductors  of  nations  ought  to  practise 
that  virtue  so  far  only  as  it  is  consistent  with  the  happiness 
and  safety  of  their  people. 

g  353.  Just  After  having  demonstrated  the  lawfulness  of  making  re- 
reprisals  prisals  when  we  can  no  otherwise  obtain  justice,  we  may 
donotaf-  thence  readily  conclude  that  a  sovereign  is  not  justifiable  in 
cause*  roT  making  forcible  opposition  to,  or  waging  war  against,  the 
war.  party,  who,  by  ordering  or  making  reprisals  in  such  a  case, 

only  exerts  his  just  right. 

g  354.  How     And  as  the  law  of  humanity  directs  nations  as  well  as  in- 
wo  ought  to  dividuals  ever  to  prefer  the  gentlest  measures,  when  they  are 
confine  our-  Suf5cient  to  obtain  justice — whenever  a   sovereign  can,  by 
prilais^r  *ne  mo&e  °f  reprisals,  procure  a  just  indemnification  or  a 
at  length      suitable  satisfaction,  he  ought  to  confine  himself  to  this  method, 
proceed  to    which  is  less  violent  and  less  fatal  than  war.     On  this  subject, 
hosiiiities.    i  cannot  avoid  noticing  an  error  which  is  too  general  to  be 
wholly  disregarded.     If  it   happens    that    a  prince,  having 
reason  to  complain  of  some  injustice  or  some  acts  of  hostility, 
and  not  finding  his  adversary  disposed  to  give  him  satisfaction, 
determines  to  make  reprisals  with  the  view  of  endeavouring 
to  compel  him  to  listen  to  the  voice  of  justice  before  he  proceeds 
to  an  open  rupture, — if,  without  a  declaration  of  war,  he  seizes 
on  his  effects,  his  shipping,  and  detains  them  as  pledges, — you 
hear  certain  men  cry  out  that  this  is  robbery.     If  that  prince 
had  at  once  declared  war,  they  would  not  have  said  a  word ; 
they  would  perhaps  have  praised  his  conduct.     Strange  for- 
getfulness  of  reason,  and  of  every  sound  principle !     Would 
we  not,  at  this  rate,  be  tempted  to  suppose  that  nations  were 
bound  to  observe  the  laws  of  chivalry, — to  challenge  each 
other  to  the  lists, — and  decide  their  quarrels  like  a  pair  of 
doughty  champions  engaged  in  regular  duel  ?     It  is  the  duty 
of  sovereigns  attentively  to  maintain  the  rights  of  their  people, 
and  to  obtain  justice  by  every  lawful  means — still,  however, 
[  289  ]  preferring  the  gentlest  methods :  and  we  again  repeat  the  as- 
sertion— it  is  evident  that  the  mode  of  reprisals,  of  which  we 
are  speaking,  is  infinitely  more  gentle  and  less  fatal  than  that 
of  war.     But  since,  between  powers  whose  strength  is  nearly 

*  Grotius  De  Jure  Belli  et  Pacis,  lib.  iii.  cap.  ii.  g  6. 
390 


DISPUTES   BETWEEN  NATIONS.  289 


AP.  xvin. 


equal,  reprisals  often  lead  to  war,  they  ought  not  to  be  attempt-  _BO_OK_« 
ed,  except  in  the  last  extremity.     In  such  circumstances,  the  - 
prince  who  has  recourse  to  that  expedient,  instead  of  proceed- 
ing to  an  open  rupture,  is  undoubtedly  entitled  to  praise  for 
his  moderation  and  prudence. 

Those  who  run  to  arms  without  necessity,  are  the  scourges 
of  the  human  race,  barbarians,  enemies  to  society,  and  re- 
bellious violaters  of  the  laws  of  nature,  or  rather,  the  laws  of 
the  common  father  of  mankind. 

There  are  cases,  however,  in  which  reprisals  would  be  justly 
condemnable,  even  when  a  declaration  of  war  would  not  be 
so :  and  these  are  precisely  those  cases  in  which  nations  may 
with  justice  take  up  arms.  When  the  question  which  con- 
stitutes the  ground  of  a  dispute,  relates,  not  to  an  act  of 
violence,  or  an  injury  received,  but  to  a  contested  right, — 
after  an  ineffectual  endeavour  to  obtain  justice  by  conciliatory 
and  pacific  measures, — it  is  a  declaration  of  war  that  ought 
to  follow,  and  not  pretended  reprisals,  which,  in  such  a  case, 
would  only  be  real  acts  of  hostility  without  a  declaration  of 
war,  and  would  be  contrary  to  public  faith  as  well  as  to  the 
mutual  duties  of  nations.  This  will  more  evidently  appear, 
when  we  shall  have  explained  the  reasons  which  establish  the 
obligation  of  declaring  war  previous  to  a  commencement  of 
hostilities.* 

But  if,  from  particular  conjunctures,  and  from  the  obstinacy 
of  an  unjust  adversary,  neither  reprisals,  nor  any  of  the 
methods  of  which  we  have  been  treating,  should  prove  suffi- 
cient for  our  defence,  and  for  the  protection  of  our  rights, 
there  remains  only  the  wretched  and  melancholy  alternative 
of  war,  which  will  be  the  subject  of  the  following  book. 

*  See  Book  in.  chap.  IT. 


291 

BOOK  III. 
OF  WAR. 


CHAP.  I. 

CHA*  ."i*.'    o;p  WAR5 — ITS  DIFFERENT  KINDS, — AND  THE  RIGHT  OF  MAKING 


WAR. 


§  i.   Defi-    W  AR  is  that  state  in  which  we  prosecute  our  right  by  force. 
nition  of      "We  also  understand,  by  this  term,  the  act  itself,  or  the  man- 
war,  rise)    ner  Of  prosecuting  our  right  by  force :  but  it  is  more  con- 
formable to  general  usage,  and  more  proper  in  a  treatise  on 
the  law  of  war,  to  understand  this  term  in  the  sense  we  have 
annexed  to  it. 

g  2.  Public  Public  war  is  that  which  takes  place  between  nations  or 
war.  (136)  sovereigns,  and  which  is  carried  on  in  the  name  of  the  public 
power,  and  by  its  order.  This  is  the  war  we  are  here  to  con- 
sider : — private  war,  or  that  which  is  carried  on  between  pri- 
vate individuals,  belongs  to  the  law  of  nature  properly  so 
called. 

§  3.  Right  In  treating  of  the  right  to  security  (Book  II.  Chap.  IV.), 
of  making  we  have  shown  that  nature  gives  men  a  right  to  employ  force, 
war.  (136)  when  ft  js  necessary  for  their  defence,  and  for  the  preserva- 
tion of  their  rights.  This  principle  is  generally  acknowledged : 
reason  demonstrates  it ;  and  nature  herself  has  engraved  it 
on  the  heart  of  man.  Some  fanatics  indeed,  taking  in  a  literal 
sense  the  moderation  recommended  in  the  gospel,  have  adopted 
the  strange  fancy  of  suffering  themselves  to  be  massacred  or 
[  292  ]  plundered,  rather  than  oppose  force  to  violence.  But  we 
need  not  fear  that  this  error  will  make  any  great  progress. 
The  generality  of  mankind  will,  of  themselves,  guard  against 
its  contagion — happy,  if  they  as  well  knew  how  to  keep  within 
the  just  bounds  which  nature  has  set  to  a  right  that  is  granted 
only  through  necessity  !  To  mark  those  just  bounds, — and, 
by  the  rules  of  justice,  equity,  and  humanity,  to  moderate  the 
exercise  of  that  harsh,  though  too  often  necessary  right, — is 
the  intention  of  this  third  book. 

(136)  See   definition   of  war  and  of  4  Rob.  Rep.  252 ;    Bro.  Ab.  tit.  Deni- 

the  king's   sole   right  to  declare   it,  as  zen,  pi.  20,  and  Chitty's  L.  N.  28,  29, 

regards   England,  per    Sir  Wm.  Scott,  30.— C. 
The   Hoop,   1  Rob.   R.   196;    Nayade, 
392 


OF   WAK,    ETC.  292 

As  nature  has  given  men  no  right  to  employ  force,  unless    BOOK  m. 
when  it  becomes  necessary  for  self  defence  and  the  preserva-    CHAP'  "' 
tion  of  their  rights  (Book  II.  §  49,  &c.),  the  inference  is  mani-  2  4-   II  be- 
fest,  that,  since  the  establishment  of  political  societies,  a  right,  }™^e°^e 
so  dangerous  in  its  exercise,  no  longer  remains  with  private  reign  power. 
persons  except  in  those  rencounters  where  society  cannot  pro-  (137) 
tect  or  defend  them.     In  the  bosom  of  society,  the  public 
authority  decides  all  the  disputes  of  the  citizens,  represses 
violence,  and  checks  every  attempt  to  do  ourselves  justice 
with  our  own  hands.    If  a  private  person  intends  to  prosecute 
his  right  against  the  subject  of  a  foreign  power,  he  may  apply 
to  the  sovereign  of  his  adversary,  or  to  the  magistrates  in- 
vested with  the  public  authority  :  and  if  he  is  denied  justice 
by  them,  he  must  have  recourse  to  his  own  sovereign,  who  is 
obliged  to  protect  him.     It  would  be  too  dangerous  to  allow 
every  citizen  the  liberty  of  doing  himself  justice  against  for- 
eigners ;  as,  in  that  case,  there  would  not  be  a  single  member 
of  the  state  who  might  not  involve  it  in  war.    And  how  could 
peace  be  preserved  between  nations,  if  it  were  in  the  power 
of  every  private  individual  to  disturb  it  ?     A  right  of  so 
momentous  a  nature, — the  right  of  judging  whether  the  na- 
tion has  real  grounds  of  complaint,  whether  she  is  authorized 
to  employ  force,  and  justifiable  in  taking  up  arms,  whether 
prudence  will  admit  of  such  a  step,  and  whether  the  welfare 
of  the  state  requires  it, — that  right,  I  say,  can  belong  only 
to  the  body  of  the  nation,  or  to  the  sovereign,  her  repre- 
sentative.    It  is  doubtless  one  of  those  rights,  without  which 
there  can  be  no  salutary  government,  and  which  are  therefore 
catted  rights  of  majesty  (Book  I.  §  45). 

Thus  the  sovereign  power  alone  is  possessed  of  authority 
to  make  war.  But,  as  the  different  rights  which  constitute 
this  power,  originally  resident  in  the  body  of  the  nation,  may 
be  separated  or  limited  according  to  the  will  of  the  nation 
(Book  I.  §  31  and  45),  it  is  from  the  particular  constitution 
of  each  state,  that  we  are  to  learn  where  the  power  resides, 
that  is  authorized  to  make  war  in  the  name  of  the  society  at 
large.  The  kings  of  England,  whose  power  is  in  other  re-  [  293  ~\ 
spects  so  limited,  have  the  right  of  making  war  and  peace.* 
Those  of  Sweden  have  lost  it.  The  brilliant  but  ruinous  ex- 
ploits of  Charles  XII.  sufficiently  warranted  the  states  of 
that  kingdom  to  reserve  to  themselves  a  right  of  such  im- 
portance to  their  safety. 

(137)  The  right  of  declaring  war  is,  in  itself.     But   as  a  king  of  England 

by  his  prerogative,  vested  in  the  king  cannot,   without    the     concurrence    of 

of  the  United  Kingdom  of  Great  Britain  parliament,  either  raise  money  or  com- 

and  Ireland.     Bro.  Ab.  tit.  Denizen,  pi.  pel  his   subjects  to   take  up  arms,  his 

20.     The  ship  Huop,  per  Sir  W.  Scott,  1  right  of  making  war  is,  in  fact,  but  a 

Rob.  R.  196,  post,  432.— C.     {And,  by  slender  prerogative,  unless  the  parlia- 

the  Constitution  of  the  United  States,  ment  second    him  with   supplies. — Ed. 

in  Congress.     Art  1,  §  8.}  1797. 

*  I  here  speak  of  the  right  considered 

50  393 


293  OF    THE   INSTRUMENTS    OF   WAR,    ETC. 

BOOK  in.  War  is  either  defensive  or  offensive.  He  who  takes  up 
CHAP-  I-  .arms  to  repel  the  attack  of  an  enemy,  carries  on  a  defensive 
I  5.  Defen-  war.  He  who  is  foremost  in  taking  up  arms,  and  attacks  a 
sive  and  of-  nation  that  lived  in  peace  with  him,  wages  offensive  war. 
fensive  war.  ^he  object  of  a  defensive  war  is  very  simple  ;  it  is  no  other 
than  self  defence :  in  that  of  offensive  war  there  is  as  great 
a  variety  as  in  the  multifarious  concerns  of  nations ;  but,  in 
general,  it  relates  either  to  the  prosecution  of  some  rights,  or 
to  safety.  We  attack  a  nation  with  a  view  either  to  obtain 
something  to  which  we  lay  claim,  to  punish  her  for  an  injury 
she  has  done  us,  or  to  prevent  one  which  she  is  preparing  to 
do,  and  thus  avert  a  danger  with  which  she  seems  to  threaten 
us.  I  do  not  here  speak  of  the  justice  of  war : — that  shall 
make  the  subject  of  a  particular  chapter : — all  I  here  propose 
is  to  indicate,  in  general,  the  various  objects  for  which  a  na- 
tion takes  up  arms — objects  which  may  furnish  lawful  reasons, 
or  unjust  pretences,  but  which  are  at  least  susceptible  of  a 
colour  of  right.  I  do  not,  therefore,  among  the  objects  of 
offensive  war,  set  down  conquest,  or  the  desire  of  invading 
the  property  of  others :  views  of  that  nature,  destitute  even 
of  any  reasonable  pretext  to  countenance  them,  do  not  con- 
stitute the  object  of  regular  warfare,  but  of  robbery,  which 
we  shall  consider  in  its  proper  place. 


CHAP,  n.  CHAP.    II. 

OF  THE  INSTRUMENTS  OF  WAR, — THE  RAISING  OF  TROOPS,  &C., 
— THEIR  COMMANDERS,  OR  THE  SUBORDINATE  POWERS  IN 
WAR.  (138) 

§  6.  Instru-  THE  sovereign  is  the  real  author  of  war,  which  is  carried 
monts  of  on  in  his  name,  and  by  his  order.  The  troops,  officers, 
war<  soldiers,  and,  in  general,  all  those  by  whose  agency  the  sove- 

reign makes  war,  are  only  instruments  in  his  hands.  They 
execute  his  will  and  not  their  own.  The  arms,  and  all  the 
apparatus  of  things  used  in  war,  are  instruments  of  an  in- 
ferior order.  For  the  decision  of  questions  that  will  occur 
in  the  sequel,  it  is  of  importance  to  determine  precisely  what 
are  the  things  which  belong  to  war.  Without  entering  here 
into  a  minute  detail,  we  shall  only  observe  that  whatever  is 
peculiarly  used  in  waging  war,  is  to  be  classed  among  the 

(138)  What  are  instruments  of  war,  le  croit  yulgairement,  1'art  do  dctruire 

or  contraband,  and  of  the  prohibitions  mais   1'art  de  paralyaer  dos   forces   de 

respecting  them,  as  regards  neutral  com-  1'ennemi.      Cours    le    Droit    Public. — 

merce,  see  Chilly's  L.  N.  119  to  128 ;  1  Paris,  1830 ;  torn.  2,  pages  85,  86,  <t  Id. 

Chilly's    Commercial  Law,  445  to  449.  406.— C. 
L'art  de  la  guerre  n'est  pas  ainsi  qu'on 


OF   THE  INSTRUMENTS   OF  WAR,    ETC.  293 

instruments  of  war  ;  and  things  which  are  equally  used  at  all   BOOK  m. 
times,  such  as  provisions,  belong  to  peace,  unless  it  be  in  cer-    CHAP-  "• 
tain  particular  junctures,  when  those  things  appear  to  be 
specially  destined  for  the  support  of  war.     Arms  of  all  kinds, 
artillery,  gun-powder,  salt-petre  and  sulphur  of  which  it  is 
composed,  ladders,  gabions,  tools  and  all  other  implements  [  294  ] 
for  sieges,  materials  for  building  ships  of  war,  tents,  soldiers' 
clothes,  &c.  :  these  always  belong  to  war. 

As  war  cannot  be  carried  on  without  soldiers,  it  is  evident  ?  7.  Right 
that  whoever  has  the  right  of  making  war,  has  also  naturally  of  levying 
that  of  raising  troops.  The  latter,  therefore,  belongs  likewise  Jj^8' 
to  the  sovereign  (§  4),  and  is  one  of  the  prerogatives  of  ma- 
jesty (Book  I.  §  45).  The  power  of  levying  troops,  or  rais- 
ing an  army,  is  of  too  great  consequence  in  a  state,  to  be 
intrusted  to  any  other  than  the  sovereign.  The  subordinate 
authorities  are  not  invested  with  it  ;  they  exercise  it  only  by 
order  or  commission  from  the  sovereign.  But  it  is  not  always 
necessary  that  they  should  have  an  express  order  for  the 
purpose.  On  those  urgent  exigencies  which  do  not  allow 
time  to  wait  for  the  supreme  order,  the  governor  of  a  pro- 
vince, or  the  commandant  of  a  town,  may  raise  troops  for 
the  defence  of  the  town  or  province  committed  to  their  care  : 
and  this  they  do  by  virtue  of  the  power  tacitly  given  them 
by  their  commission  in  cases  of  this  nature. 

I  say  that  this  important  power  is  the  appendage  of  sove- 
reignty ;  it  makes  a  part  of  the  supreme  authority.  But  we 
have  already  seen  that  those  rights  which  together  constitute 
the  sovereign  power,  may  be  divided  (Book  I.  §§  31,  45),  if 
such  be  the  will  of  the  nation.  It  may  then  happen  that  a 
nation  does  not  intrust  her  chief  with  a  right  so  dangerous  to 
her  liberty  as  that  of  raising  and  supporting  troops,  or  at 
least  that  she  limits  the  exercise  of  it,  by  making  it  depend 
on  the  consent  of  her  representatives.  The  king  of  England, 
who  has  the  right  of  making  war,  has  also,  indeed,  that  of 
granting  commissions  for  raising  troops  ;  but  he  cannot  com- 

l any  person  to  enlist,  nor,  without  the  concurrence  of  par- 

ment, keep  an  army  on  foot.  (140) 

Every  citizen  is  bound  to  serve  and  defend  the  state  as  far  as  g  g.  obiiga- 
he  is  capable.  (140)    Society  cannot  otherwise  be  maintained  ;  tion  of  the 
and  this  concurrence  for  the  common  defence  is  one  of  theciti*ensor- 
principal  objects  of  every  political  association.     Every  man 

(139)  But  semble,  that  anciently  the  346  ;    2    Camp.  320,  and   see   Barring- 

king  might  press  men  to  serve  on  land  ton's  Observations  on  Ancient  Statutes, 

as  soldiers.     Barrington's   Observations  334,  5  edit.  ;  1  Bla.  Com.  420,  n.  13.     It 

on   Ancient   Statutes,  334.     The   right  should  seem  that   every  passenger  on 

of  pressing  men  to  serve  in  the  Navy  board    a   merchant    ship   is    bound   to 

constitutes  an   exception.     Its  legality  assist  in  her  defence  ;  and  if  he  refuse, 

cannot  now  be  effectually  disputed,  per  he  may  be  confined  until  all  danger  from 

Lord  Mansfield,   King  v.  Jubbn,  Cowp.  the    attack     has    subsided.      Boyce  v. 

517  ;    per   Lord    Kenyon,   5   Term    R.  Bailiff,  1  Campb.  60.  —  C. 
276  ;  9  East,  466  ;  5  East,  477  ;  14  East,         (140)  See  note  (139)  ante. 

395 


pe 
lia 


294  OF    THE    INSTRUMENTS    OF   WAR,    ETC. 

in.    capable  of  carrying  arms  should  take  them  up  at  the  first 

order  of  him  who  has  the  power  of  making  war. 
Enlist-      In  former  times,  and  especially  in  small  states,  immediately 
ing  or  rais-  on  a  declaration  of  war,  every  man  became  a  soldier ;  the 
mgof  troops.  Wj10je  community  took  up  arms,  and  engaged  in  the  war.   Soon 
after,  a  choice  was  made,  and  armies  were  formed  of  picked 
men, — the  remainder  of  the  pveople  pursuing  their  usual  occu- 
pations.    At  present,  the  use   of  regular  troops  is   almost 
everywhere   adopted,   especially  in   powerful   states.       The 
public  authority  raises  soldiers,  distributes  them  into  different 
bodies  under  the  command  of  generals  and  other  officers,  and 
keeps  them  on  foot  as  long  as  it  thinks  necessary.     As  every 
citizen  or  subject  is  bound  to  serve  the  state,  the  sovereign 
has  a  right  to  enlist  whom  he  pleases.      But  he  ought  to 
choose  such  only  as  are  fit  for  the  occupation  of  war ;  and  it 
is  highly  proper  that  he  should,  as   far  as  possible,  confine 
his  choice  to  volunteers,  who  enlist  without  compulsion, 
jj  10.    Whe-     No  person  is  naturally  exempt  from  taking  up  arms  in  de- 
ther  there     fence  of  the  state, — the  obligation  of  every  member  of  society 
emTionT"   bemg  tne  same-      Those  alone  are  excepted,   who  are  in-- 
from  carry-  capable  of  handling  arms,  or  supporting  the  fatigues  of  war. 
ing  arms.      This  is  the  reason  why  old  men,  children,  and  women  are  ex- 
[  295  ]  empted.     Although  there  be  some  women  who  are  equal  to 
men  in  strength  and  courage,  such  instances  are  not  usual; 
and  rules  must  necessarily  be  general,  and  derived  from  the 
ordinary  course  of  things.    Besides,  women  are  necessary  for 
other  services  in  society ;   and,  in  short,  the  mixture  of  both 
sexes  in  armies  would  be  attended  with  too  many  inconveniences. 
A  good  government  should,  as  far  as  possible,  so  employ 
all  the  citizens,  and  distribute  posts  and  employments  in  such 
manner,  that  the  state  may  be  most  effectually  served  in  all 
its  affairs.     Therefore,  when  not  urged  by  necessity,  it  should 
exempt  from  military  service  all  those  who  are  employed  in 
stations  useful  or  necessary  to  society.     Upon  this  ground, 
magistrates    are    usually  exempted, — their  whole   time    not 
being  too  much  for  the  administration  of  justice  and  the 
maintenance  of  order. 

The  clergy  cannot  naturally,  and,  as  matter  of  right,  arro- 
gate to  themselves  any  peculiar  exemption.  To  defend  one's 
country  is  an  action  not  unworthy  of  the  most  sacred  hands. 
That  article  of  the  canon  law  which  forbids  ecclesiastics  to 
shed  blood,  is  a  convenient  device  to  exempt  from  personal 
danger  those  men  who  are  often  so  zealous  to  fan  the  flame 
of  discord  and  excite  bloody  wars.  Indeed,  for  the  same  rea- 
sons which  we  have  above  alleged  in  favour  of  magistrates, 
an  exemption  from  bearing  arms  should  be  allowed  to  such 
of  the  clergy  as  are  really  useful, — to  those  who  are  employed 
in  teaching  religion,  governing  the  church,  and  celebrating 
the  public  worship.* 

*  Formerly  bishops  went  to  war  in  yirtue  of  their  fiefs,  and  led  with  them 


OF   THE   INSTRUMENTS   OF   WAR,    ETC.  295 

But  those  immense  multitudes  of  useless  monks  and  friars,  BOOK  m. 
— those  drones,  who,  under  pretence  of  dedicating  themselves  CHAP'  "' 
to  God,  dedicate  themselves  in  fact  to  sloth  and  effeminacy, — 
by  what  right  do  they  pretend  to  a  prerogative  that  is  ruinous 
to  the  state  ?  And  if  the  prince  exempts  them  from  military 
service,  is  he  not  guilty  of  injustice  to  the  other  members,  on 
whom  he  thus  throws  the  whole  burthen  ?  I  do  not  here 
mean  to  advise  a  sovereign  to  fill  his  armies  with  monks,  but 
gradually  to  diminish  a  useless  class  of  men,  by  depriving 
them  of  injurious  and  ill-founded  privileges.  History  men- 
tions a  martial  bishop*  whose  weapon  was  a  club,  with  which  [  296  ] 
he  knocked  down  the  enemy,  to  avoid  incurring  the  censure 
of  the  canon  law  by  shedding  their  blood.  It  would  be 
much  more  reasonable,  when  monks  are  exempted  from  carry- 
ing arms,  that  they  should  be  employed  in  the  work  as  pioneers, 
and  thus  made  to  alleviate  the  toil  of  the  soldiers.  They  have, 
on  many  occasions,  zealously  undertaken  the  task  in  cases 
of  necessity.  I  could  mention  more  than  one  famous  siege 
where  monks  have  usefully  served  in  defence  of  their  country. 
When  the  Turks  besieged  Malta,  the  ecclesiastics,  the  women, 
the  very  children,  all,  according  to  their  respective  strength 
or  capacity,  contributed  to  that  glorious  defence,  which  baffled 
the  utmost  efforts  of  the  Ottoman  empire. 

There  is  another  class  of  idle  drones,  whose  exemption  is 
a  still  more  glaring  abuse, — I  mean  those  swarms  of  useless 
footmen  who  crowd  the  dwellings  of  the  great  and  the  wealthy, 
— and  who,  by  the  very  nature  of  their  employment,  are  them- 
selves corrupted  in  displaying  the  luxury  of  their  masters. 

Among  the  Romans,  while  every  citizen  took  his  turn  to  ?  n.    Sol- 
serve  in  the  army,  their  service  was  gratuitous.     But  when  a  diers'  Pa? 
choice  is  made,  and  standing  armies  are  kept  on  foot,  the  state  ^  quar~ 
is  bound  to  pay  them,  as  no  individual  is  under  an  obligation 
to  perform  more  than  his  quota  of  the  public  service :  and  if 
the  ordinary  revenues  are  not  sufficient  for  the  purpose,  the 
deficiency  must  be  provided  for  by  taxation.     It  is  but  rea- 
sonable that  those  who  do  not  serve  should  pay  their  defenders. 

them  their  vassals.  The  Danish  bishops  the  attack  of  the  pass  of  Susa.  This  is 
were  not  inattentive  to  a  function  which  an  abuse  which  the  church  very  justly 
pleased  them  better  than  the  peaceful  opposes.  A  bishop  makes  a  better  ap- 
cares  of  episcopacy.  The  famous  Ab-  pearance  in  his  proper  station,  m  his 
salom,  bishop  of  Roschild,  and  after-  diocese,  than  in  the  army;  and,  at 
wards  archbishop  of  Lunden,  was  the  present,  sovereigns  are  in  no  want  of 
principal  general  of  king  Waldemar  I.  generals  and  officers,  who  will  perform 
And  since  the  use  of  regular  troops  has  more  useful  services  than  can  be  ex- 
superseded  that  feudal  service,  there  pected  from  churchmen.  In  short,  let 
have  not  been  wanting  some  martial  every  person  keep  to  his  vocation.  All 
prelates  who  eagerly  courted  the  com-  I  dispute  with  the  clergy,  is  their  ex- 
mand  of  armies.  The  cardinal  De  la  emption  as  matter  of  right  and  in  cases 

Valette,    and    Sourdis,   archbishop    of  of  necessity. Ed.  1797. 

Bourdeaux,  appeared  in  arms  under  the        *  A  bishop  of  Beauvais,  under  Philip 

ministry  of  cardinal  Richelieu,  who  also  Augustus.     He  fought  at  the  battle  of 

acted  himself  in  a  military  capacity  at  Bouvines. 

2Y  397 


IAP.    II. 


OF   THE   INSTRUMENTS   OF   WAR,   ETC. 

in.  When  the  soldier  is  not  in  the  field,  he  must  necessarily  be 
provided  with  quarters.  The  burthen,  in  such  case,  naturally 
falls  on  housekeepers :  but  as  that  is  attended  with  many  in- 
conveniences, and  proves  very  distressing  to  the  citizens,  it 
becomes  a  good  prince,  or  a  wise  and  equitable  government, 
to  ease  them  of  it  as  far  as  possible.  In  this  particular,  the 
king  of  France  has  made  magnificent  and  ample  provision  in 
many  towns,  by  the  erection  ofbarracks  for  the  accommodation 
of  the  garrison. 

g  12.  Hos-  The  asylums  prepared  for  indigent  soldiers  and  officers 
pitaisfor  Wh0  are  grown  gray  in  the  service,  and  whom  toil  or  the 
invalids.  enemy's  sword  has  rendered  incapable  of  providing  for  their 
own  subsistence,  may  be  considered  as  part  of  the  military  pay. 
In  France  and  England,  magnificent  establishments  have  been 
made  in  favour  of  invalids,  which,  while  they  discharge  a  debt 
of  a  sacred  nature,  do  honour  to  the  sovereign  and  the  nation. 
The  care  of  those  unfortunate  victims  of  war  is  the  indis- 
pensable duty  of  every  state,  in  proportion  to  its  ability. 
It  is  repugnant,  not  only  to  humanity,  but  to  the  strictest 
justice,  that  generous  citizens,  heroes  who  have  shed  their 
blood  for  the  safety  of  their  country,  should  be  left  to  perish 
with  want,  or  unworthily  forced  to  beg  their  bread.  The 
honourable  maintenance  of  such  persons  might  very  properly 
be  imposed  upon  rich  convents  and  large  ecclesiastical  benefices. 
Nothing  can  be  more  just  than  that  those  citizens  who  avoid 
[  297  ]  all  the  dangers  of  war,  should  bestow  part  of  their  riches  for 

the  relief  of  their  valiant  defenders. 

§  13.  Mer-  Mercenary  soldiers  are  foreigners  voluntarily  engaging  to 
eenary  sol-  serve  the  state  for  money,  or  a  stipulated  pay.  As  they  owe 
diers.  no  service  to  a  sovereign  whose  subjects  they  are  not,  the 
advantages  he  offers  them  are  their  sole  motive.  By  en- 
listing, they  incur  the  obligation  to  serve  him ;  and  the  prince, 
on  his  part,  promises  them  certain  conditions,  which  are  settled 
in  the  articles  of  enlistment.  Those  articles,  being  the  rule 
and  measure  of  the  respective  obligations  and  rights  of 
the  contracting  parties,  are  to  be  religiously  observed. 
The  complaints  of  some  French  historians  against  the 
Swiss  troops,  who  on  several  occasions  formerly  refused 
to  march  against  the  enemy,  and  even  withdrew  from  the 
service,  because  they  were  not  paid, — those  complaints,  I 
say,  are  equally  ridiculous  and  unjust.  Why  should  the 
articles  of  enlistment  be  more  strongly  binding  on  one  of  the 
parties  than  on  the  other?  Whenever  the  prince  fails  to 
perform  what  he  has  promised,  the  foreign  soldiers  are  dis- 
charged from  any  further  duty  to  him.  I  own  it  would  be 
ungenerous  to  forsake  a  prince  who,  without  any  fault  on  his 
own  part,  is  by  accident  alone  rendered  for  a  while  unable 
to  make  good  his  payments.  There  may  even  be  occasions 
when  such  an  inflexibility  on  the  part  of  the  soldier  would  be, 
if  not  contrary  to  strict  justice,  at  least  very  repugnant  to 


OF   THE   INSTRUMENTS    OF   WAR,    ETC.  297 

equity.  But  this  was  never  the  case  with  the  Switzers :  they  BOOK  m. 
never  were  known  to  quit  the  service  on  the  first  failure  of  CHAP-  "i. 
payment ;  and  when  they  perceived  the  good  intentions  of  a 
sovereign  labouring  under  a  real  inability  to  satisfy  them, 
their  patience  and  zeal  always  supported  them  under  such 
difficulties.  Henry  the  Fourth  owed  them  immense  sums: 
yet  they  did  not,  in  his  greatest  necessities,  abandon  him ; 
and  that  hero  found  the  nation  equally  generous  as  brave. 
I  here  speak  of  the  Switzers,  because,  in  fact,  those  above 
alluded  to  were  often  mere  mercenaries.  But  a  distinction 
is  to  be  made  between  troops  of  this  kind  and  those  Switzers 
who  at  present  serve  different  powers,  and  with  the  permission 
of  their  sovereign,  and  in  virtue  of  alliances  subsisting  between 
those  powers  and  the  Helvetic  body,  or  some  particular  can- 
ton. The  latter  are  real  auxiliaries,  though  paid  by  the  sove- 
reigns whom  they  serve. 

Much  has  been  said  on  the  question — Whether  the  pro- 
fession of  a  mercenary  soldier  be  lawful  or  not  ?  Whether 
individuals  may,  for  money  or  any  other  reward,  engage  to 
serve  a  foreign  prince  in  his  wars  ?  This  question  does  not 
to  me  appear  very  difficult  to  be  solved.  Those  who  enter 
into  such  engagements  without  the  express  or  tacit  consent 
of  their  sovereign,  offend  against  their  duty  as  citizens.  But 
if  their  sovereign  leaves  them  at  liberty  to  follow  their  in- 
clination for  a  military  life,  they  are  perfectly  free  in  that 
respect.  Now,  every  free  man  may  join  whatever  society  he 
pleases,  according  as  he  finds  it  most  to  his  advantage.  He  [  298  ] 
may  make  its  cause  his  own,  and  espouse  its  quarrels.  He 
becomes  in  some  measure,  at  least  for  a  time,  a  member  of 
the  state  in  whose  service  he  engages :  and  as  an  officer  is 
commonly  at  liberty  to  quit  the  service  when  he  thinks 
proper,  and  the  private  soldier  at  the  expiration  of  his  en- 
gagement,— if  that  state  embark  in  a  war  which  is  evidently 
unjust,  the  foreigner  may  quit  its  service.  And  the  mer- 
cenary soldier,  having  now  learned  the  art  of  war,  has 
rendered  himself  more  capable  of  serving  his  country,  if  ever 
she  require  his  assistance.  This  last  consideration  will  fur- 
nish us  with  an  answer  to  a  question  proposed  on  this  head — 
Whether  the  sovereign  can  with  propriety  permit  his  subjects 
to  serve  foreign  powers  indiscriminately  for  money  ?  He  can 
for  this  simple  reason — that  his  subjects  will  thus  learn  an 
art,  of  which  a  thorough  knowledge  is  both  useful  and  neces  • 
sary.  The  tranquillity,  the  profound  peace  which  Switzerland 
has  so  long  enjoyed  in  the  midst  of  all  the  commotions  and 
wars  Avhich  have  agitated  Europe, — that  long  repose  would 
soon  become  fatal  to  her,  did  not  her  citizens,  by  serving 
foreign  princes,  qualify  themselves  for  the  operations  of  war, 
%nd  keep  alive  their  martial  spirit. 

Mercenary  soldiers  enlist  voluntarily.     The  sovereign  has  0  14.   What 
no  right  to  compel  foreigners :  he  must  not  even  employ  strata-  i«  to  bo  ob- 

399 


298  OF    THE    INSTRUMENTS    OF    WAR,    ETC. 

BOOK  in.    gem  or  artifice,  in  order  to  induce  them  to  engage  in  a  con- 
.  C:IAP-  "'    tract,  which  like  all  others,  should  be  founded  on  candour  and 

good  faith. 

their  enlist-       ^-s  ^e  right  of  levying  soldiers  belongs  solely  to  the  nation 

ment.          or  the  sovereign  (§  7),  no  person  must  attempt  to  enlist  soldiers, 

^  15.    En-    in  a  foreign  country,  without  the  permission  of  the  sovereign ; 

listing  in      and,  even  with  that  permission,  none  but  volunteers  are  to  be 

countries      existed ;  for  the  service  of  their  country  is  out  of  the  question 

here ;  and  no  sovereign  has  a  right  to  give  or  sell  his  subjects 

to  another. 

The  man  who  undertakes  to  enlist  soldiers  in  a  foreign 
country,  without  the  sovereign's  permission, — and,  in  gene- 
ral, whoever  entices  away  the  subjects  of  another  state, 
violates  one  of  the  most  sacred  rights  of  the  prince  and  the 
nation.  This  crime  is  distinguished  by  the  name  of  kid- 
napping, or  man-stealing,  and  is  punished  with  the  utmost 
severity  in  every  well-regulated  state.  Foreign  recruiters 
are  hanged  without  mercy,  and  with  great  justice.  It  is  not 
presumed  that  their  sovereign  has  ordered  them  to  commit  a 
crime ;  and,  supposing  even  that  they  had  received  such  an 
order,  they  ought  not  to  have  obeyed  it, — their  sovereign 
having  no  right  to  command  what  is  contrary  to  the  law  of 
nature.  It  is  not,  I  say,  presumed  that  these  recruiters  act 
by  order  of  their  sovereign ;  and  with  respect  to  such  of  them 
as  have  practised  seduction  only,  it  is  generally  thought  suffi- 
cient to  punish  them  when  they  can  be  detected  and  caught : 
if  they  have  used  violence,  and  made  their  escape,  it  is  usual 
to  demand  a  surrender  of  the  delinquents,  and  to  claim  the 
persons  they  have  carried  off.  But  if  it  appears  that  they 
I"  299  1  acted  by  order,  such  a  proceeding  in  a  foreign  sovereign 
is  justly  considered  as  an  injury,  and  as  a  sufficient  cause 
for  declaring  war  against  him,  unless  he  makes  suitable 
reparation. 

\  16.    Obiu      All  soldiers,  natives  or  foreigners,  are  to  take  an  oath  to 
gation  of      serve  faithfully,  and  not  desert  the  service.     This  is  no  more 
soldiers.       ^an  ^^  ^QJ  are  alrea(Jj  obliged  to,  the  former  as  subjects, 
the  latter  by  their  engagement ;  but  their  fidelity  is  of  so 
great  importance  to  the  state,  that  too  many  precautions  cannot 
be  taken  for  rendering  it  secure.     Deserters  merit  severe  and 
exemplary  punishment ;  and  the  sovereign  may,  if  he  thinks 
it  necessary,  annex  the  penalty  of  death  to  desertion.     The 
emissaries  who  solicit  them  to  desert  are  far  more  guilty 
than  the  recruiters  mentioned  in  the  preceding  section. 
\  17.   Mm-      Good  order  and  subordination,  so  useful  in  all  places,  are 
tarylaws.     nowhere   so   necessary   as    in   the   army.       The   sovereign 
should  exactly  specify  and  determine  the  functions,  duties, 
and  rights  of  military  men, — of  soldiers,  officers,  commanders 
of  corps,  and  generals.     He  should  regulate  and  fix  the  au- 
thority of  commanders  in  all  the  gradations  of  rank, — the 
punishments  to  be  inflicted  on  offenders, — the  form  of  trials, 


OF  THE   INSTRUMENTS   OF   WAR,   ETC.  299 

&c.     The  laws  and  ordinances  relative  to  these  several  par-   BOOK  m. 
ticulars  form  the  military  code.  CHAP-  "•  . 

Those  regulations,  whose  particular  tendency  is  to  main- 
tain order  among  the  troops,  and  to  enable  them  to  perform 
their  military  service  with  advantage  to  the  state,  constitute  §  18-   MilJ- 
what  is  called  military  discipline.     This  is  of  the  highest  *"* disci- 
importance.     The  Switzers  wejre  the  first  among  the  modern  p  " 
nations  that  revived  it  in  its  ancient  vigour.     It  was  a  good 
discipline,  added  to  the  valour  of  a  free  people,  that  produced, 
even  in  the  infancy  of  their  republic,  those  brilliant  achieve- 
ments which  astonished  all  Europe.     Machiavel  says  that  the 
Switzers  are  the  masters  of  all  Europe  in  the  art  of  war.* 
In  our  times,  the  Prussians  have  shown  what  may  be  expected 
from  good  discipline  and  assiduous  exercise :  soldiers,  collected 
from  all  quarters,  have,  by  the  force  of  habit,  and  the  in- 
fluence of  command,  performed  all  that  could  be  expected 
from  the  most  zealous  and  loyal  subjects. 

Every  military  officer,  from  the  ensign  to  the  general,  en- 
joys the  rights  and  authority  assigned  him  by  the  sovereign  ; 
and  the  will  of  the  sovereign,  in  this  respect,  is  known  by  his  ?  19-  SuW- 
express  declarations,  contained  either  in  the  commissions  he  d*11**0  P°W- 
confers  or  in  the  military  code, — or  is,  by  fair  deduction,  in- ers 
ferred  from  the  nature  of  the  functions  assigned  to  each 
officer  ;  for  every  man  who  is  intrusted  with  an  employment  is 
presumed  to  be  invested  with  all  the  powers  necessary  to 
enable  him  to  fill  his  station  with  propriety,  and  successfully 
discharge  the  several  functions  of  his  office. 

Thus,  the  commission  of  a  commander  in  chief,  when  it  is 
simple  and  unlimited,  gives  him  an  absolute  power  over  the 
army — a  right  to  march  it  whither  he  thinks  proper,  to  un- 
dertake such  operations  as  he  finds  conducive  to  the  service 
of  the  state,  &c.  It  is  true,  indeed,  that  the  powers  of  a 
general  are  often  limited ;  but  the  example  of  Marshal  Turenne 
sufficiently  shows,  that,  when  the  sovereign  is  certain  of  having  [  800  3 
made  a  good  choice,  the  best  thing  he  can  do  in  this  respect 
is  to  give  the  general  an  unlimited  power.  Had  the  opera- 
tions of  the  Duke  of  Marlborough  depended  on  the  directions 
of  the  cabinet,  there  is  little  probability  that  all  his  campaigns 
would  have  been  crowned  with  such  distinguished  success. 

When  a  governor  is  besieged  in  the  place  where  he  com- 
mands, and  all  communication  with  his  sovereign  is  cut  off, 
that  very  circumstance  confers  on  him  the  whole  authority 
of  the  state,  so  far  as  respects  the  defence  of  the  town  and 
the  safety  of  the  garrison. 

These  particulars  merit  the  utmost  attention,  as  they  fur- 
nish a  principle  for  determining  what  the  several  commanders, 
who  are  the  subordinate  or  inferior  powers  in  war,  may  exe- 
cute with  sufficient  authority.  Exclusive  of  the  consequences 

*  Disc,  on  Liyy. 
51  2i2  401 


300  OP  THE   INSTRUMENTS   OF   WAR,  ETC. 

BOOK  in.  which  may  be  deduced  from  the  very  nature  of  their  employ- 
.  CHAPl  "•  ments,  we  are  likewise  to  consider  the  general  practice  and 
established  usage  in  this  respect.  If  it  be  a  known  fact,  that, 
m  the  service  of  a  particular  nation,  officers  of  a  certain  rank 
have  been  uniformly  invested  with  such  or  such  powers,  it 
may  reasonably  be  presumed  that  the  person  we  are  engaged 
with  is  furnished  with  the  same  powers. 

g  20.  How  Every  promise  made  by  any  of  the  subordinate  powers,  by 
their  pro-  any  commander  within  his  department,  in  conformity  to  the 
muses  bi-  *  terms  of  his  commission  and  to  the  authority  which  he  natu- 
reip.  '  rally  derives  from  his  office  and  the  functions  intrusted  to  his 
;are, — every  such  promise,  I  say,  is,  for  the  reasons  above 
alleged,  made  in  the  name  and  by  the  authority  of  the  sove- 
reign, and  equally  obligatory  on  him  as  if  he  had  himself  per- 
sonally made  it.  Thus,  a  governor  capitulates  for  the  town 
which  he  commands,  and  for  the  garrison ;  and  what  he  has 
promised,  the  sovereign  cannot  invalidate.  In  the  last  war, 
the  general  who  commanded  the  French  at  Lintz,  engaged  to 
march  back  his  troops  on  this  side  the  Rhine.  Governors  of 
towns  have  often  promised  that,  for  a  limited  time,  their  gar- 
risons should  not  carry  arms  against  the  enemy  with  whom 
they  capitulated :  and  these  capitulations  have  always  been 
faithfully  observed. 

g  21.   In         But,  if  a  subordinate  power  allows  himself  a  greater  lati- 

what  cases    tude,  and  exceeds   the   authority  annexed  to  his  office,  his 

mijes^ind    Prom^se  becomes  no  more  than  a  private  engagement,  or  what 

only  them-   'ls  called  sponsio,  of  which  we  have  already  treated.     (Book 

selves.         II.  Chap.  XIV.)     This  was  the  case  with  the  Roman  consuls 

at  the  Furcse  Caudinse.     They  might,  indeed,  agree  to  deliver 

hostages,  and  that  their  army  should  pass  under  the  yoke, 

&c.,  but  they  were  not  authorized  to  conclude  a  peace,  as 

they  took  care  to  signify  to  the  Samnites. 

g  22.    Their     If  a  subordinate  power  assumes  an  authority  which  he  does 
assumption  not  possess,  and  thus  deceives  the  party  treating  with  him, 
of  an  au-     though  an  enemy, — he  is  naturally  responsible  for  the  damage 
wbicifthey  caused  by  his  deception,  and  bound  to  make  reparation.     I 
donotpos-  say  "though  an  enemy:"  for  the  faith  of  treaties  is  to  be  ob- 
sess, served  between  enemies,  as  all  men  of  principle  agree,  and  as 
we  shall  prove  in  the  sequel.     The  sovereign  of  that  fraudu- 
[  301  ]  lent  officer  ought  to  punish  him,  and  oblige  him  to  repair  his 
fault :  it  is  a  duty  which  the  prince  owes  to  justice,  and  to 
his  own  character. 

g  23.   How      Promises  made  by  a  subordinate  power  are  obligatory  on 
they  bind     those  who  are  subject  to  his  control,  and  bind  them  in  every 
their  in-      particular  in  which  he  is  authorized  and  accustomed  to  com- 
lors'        mand  their  obedience :  for,  with  respect  to  such  particulars, 
he  is  vested  with  the  sovereign  authority,  which  his  inferiors 
are  bound  to  respect  in  his  person.     Thus,  in  a  capitulation, 
the  governor  of  a  town  stipulates  and  promises  for  his  garri- 
son, and  even  for  the  magistrates  and  citizens. 

402 


OF   THE  JUST   CAUSES   OF  WAR.  301 

CHAP.  III. 


OF   THE  JUST   CAUSES   OF  WAR.  (141) 


BOOK    III. 
CHAP.    III. 


WHOEVER  entertains  a  true  idea  of  war, — whoever  con-  \  24.  War 
aiders  its  terrible  effects,  its  destructive  and  unhappy  conse-  ^ver  to  be 
quences,  will  readily  agree  that  it  should  never  be  undertaken  undertaken 

'  ,  •/      <  without 

without  the  most  cogent  reasons.  Humanity  revolts  against  very  C0(,ent 
a  sovereign,  who,  without  necessity  or  without  very  powerful  reasons? 
reasons,  lavishes  the  blood  of  his  most  faithful  subjects,  and 
exposes  his  people  to  the  calamities  of  war,  when  he  has  it  in 
his  power  to  maintain  them  in  the  enjoyment  of  an  honour- 
able and  salutary  peace.  And  if  to  this  imprudence,  this 
want  of  love  for  his  people,  he  moreover  adds  injustice  to- 
wards those  he  attacks, — of  how  great  a  crime,  or  rather,  of 
what  a  frightful  series  of  crimes,  does  he  not  become  guilty ! 
Responsible  for  all  the  misfortunes  which  he  draws  down  on 
his  own  subjects,  he  is  moreover  loaded  with  the  guilt  of  all 
those  which  he  inflicts  on  an  innocent  nation.  The  slaughter 
of  men,  the  pillage  of  cities,  the  devastation  of  provinces, — 
such  is  the  black  catalogue  of  his  enormities.  He  is  respon- 
sible to  God,  and  accountable  to  human  nature,  for  every 
individual  that  is  killed,  for  every  hut  that  is  burned  down. 
The  violences,  the  crimes,  the  disorders  of  every  kind,  atten- 
dant on  the  tumult  and  licentiousness  of  war,  pollute  his 
conscience,  and  are  set  down  to  his  account,  as  he  is  the  origi- 
nal author  of  them  all.  Unquestionable  truths !  alarming 
ideas  !  which  ought  to  affect  the  rulers  of  nations,  and,  in  all 
their  military  enterprises,  inspire  them  with  a  degree  of  cir- 
cumspection proportionate  to  the  importance  of  the  subject ! 

Were  men  always  reasonable,  they  would  terminate  their  §  25.  Justi- 
contests  by  the  arms  of  reason  only:    natural  justice  and ficatoir rea- 
equity  would   be   their   rule,    or  their  judge.     Force   is  a^'v"°for 
wretched  and  melancholy  expedient  against  those  who  spurn  making 
at  justice,  and  refuse  to  listen  to  the  remonstrances  of  reason:  war. 
but,  in  short,  it  becomes  necessary  to  adopt  that  mode,  when  [  302  ] 
every  other  proves  ineffectual.     It  is  only  in  extremities  that 
a  just  and  wise  nation,  or  a  good  prince,  has  recourse  to  it,  as 
we  have  shown  in  the  concluding  chapter  of  the  second  book. 
The  reasons  which  may  determine  him  to  take  such  a  step  are 
of  two  classes.     Those  of  the  one  class  show  that  he  has  a 
right  to  make  war, — that  he  has  just  grounds  for  undertaking 
it : — these  are  called  justificatory  reasons.    The  others,  found- 
ed on  fitness  and  utility,  determine  whether  it  be  expedient 
for  the  sovereign  to  undertake  a  war, — these  are  called  mo- 
tives. 

(141)  See  further,  as  to  what  are,  or    to  be  here  applicable,  pott,  B.  4,  ch.  4, 
are  not,  just  causes  for  rescinding  a    g  44,  45,  p.  449. 
treaty  of  peace,  and  which  seem  also 


802  OP   THE   JUST   CAUSES   OF   WAR. 

BOOK.  in.        The  right  of  employing  force,  or  making  war,  belongs  to 
CHAP.  in.  nations  no  farther  than  is  necessary  for  their  own  defence, 


I  26.  What  and  for  the  maintenance  of  their  rights  (§  3).  Now,  if  any 
is  in  gene-  one  attacks  a  nation,  or  violates  her  perfect  rights,  he  does 
«?u*eof  war.  ^er  an  ^njur7-  Then,  and  not  till  then,  that  nation  has  a 
right  to  repel  the  aggressor,  and  reduce  him  to  reason. 
Further,  she  has  a  right  to  prevent  the  intended  injury,  when 
she  sees  herself  threatened  with  it  (Book  II.  §  50).  Let  us 
then  say  in  general,  that  the  foundation,  or  cause  of  every 
just  war  is  injury,  either  already  done  or  threatened.  The 
justificatory  reasons  for  war  show  that  an  injury  has  been  re- 
ceived, or  so  far  threatened  as  to  authorize  a  prevention  of  it 
by  arms.  It  is  evident,  however,  that  here  the  question  re- 
gards the  principal  in  the  war,  and  not  those  who  join  in  it 
as  auxiliaries.  When,  therefore,  we  would  judge  whether  a 
war  be  just,  we  must  consider  whether  he  who  undertakes  it 
has  in  fact  received  an  injury,  or  whether  he  be  really  threat- 
ened with  one.  And,  in  order  to  determine  what  is  to  be  con- 
sidered as  an  injury,  we  must  be  acquainted  with  a  nation's 
rights,  properly  so  called, — that  is  to  say,  her  perfect  rights. 
These  are  of  various  kinds,  and  very  numerous,  but  may  all 
be  referred  to  the  general  heads  of  which  we  have  already 
treated,  and  shall  further  treat  in  the  course  of  this  work. 
Whatever  strikes  at  these  rights  is  an  injury,  and  a  just  cause 
of  war. 

§  27.   What     The  immediate  consequence  of  the  premises  is,  that  if  a  na- 

war  is  un-    tion  takes  up  arms  when  she  has  received  no  injury,  nor  is 

Just  threatened  with  any,  she  undertakes  an  unjust  war.     Those 

alone,  to  whom  an  injury  is  done  or  intended,  have  a  right  to 

make  war. 

$  28.  The  From  the  same  principle  we  shall  likewise  deduce  the  just 
object  of  an(j  lawful  object  of  every  war,  which  is,  to  avenge  or  pre- 
vent injury.  To  avenge  signifies  here  to  prosecute  the  repa- 
ration of  an  injury,  if  it  be  of  a  nature  to  be  repaired, — or,  if 
the  evil  be  irreparable,  to  obtain  a  just  satisfaction, — and  also 
to  punish  the  offender,  if  requisite,  with  a  view  of  providing 
for  our  future  safety.  The  right  to  security  authorizes  us  to 
do  all  this  (Book  II.  §§  49—52).  We  may  therefore  distinct- 
ly point  out,  as  objects  of  a  lawful  war,  the  three  follow- 
ing : — 1.  To  recover  what  belongs,  or  is  due  to  us.  2.  To 
provide  for  our  future  safety  by  punishing  the  aggressor  or 
offender.  3.  To  defend  ourselves,  or  to  protect  ourselves  from 
[  303  ]  injury,  by  repelling  unjust  violence.  The  two  first  are  the 
objects  of  an  offensive,  the  third  of  a  defensive  war.  Camil- 
lus,  when  on  the  point  of  attacking  the  Gauls,  concisely  set 
forth  to  his  soldiers  all  the  subjects  on  which  war  can  be 
grounded  or  justified — omnia,  quce  defendi,  repetique,  et 
ulciscifas  sit.* 

*  Livy,  lib.  v.  cap.  49. 


OF   THE   JUST   CAUSES    OF  WAR.  803 

As  the  nation,  or  her  ruler,  ought,  in  every  undertaking,    BOOK  im 
not  only  to  respect  justice,  but  also  to  keep  in  view  the  ad-  CHAP'  m' 
vantage  of  the  state,  it  is  necessary  that  proper  and  com-  § 29-   Both 
mendable  motives  should  concur  with  the  justificatory  reasons,  ^jj,0*^ 
to  induce  a  determination  to  embark  in  a  war.     These  rea-  pr^^mo- 
sous  show  that  the  sovereign  has  a  right  to  take  up  arms,  tives  requi- 
that  he  has  just  cause  to  do  so.     The  proper  motives  show,  site  in  un- 
that  in  the  present  case  it  is  advisable  and  expedient  to  make  ^earrtakins  a 
use  of  his  right.     These  latter  relate  to  prudence,  as  the 
justificatory  reasons  come  under  the  head  of  justice. 

I  call  proper  and  commendable  motives  those  derived  from  §  so.  Proper 
the  good  of  the  state,  from  the  safety  and  common  advantage  motives, 
of  the  citizens.  They  are  inseparable  from  the  justificatory 
reasons, — a  breach  of  justice  being  never  truly  advantageous. 
Though  an  unjust  war  may  for  a  time  enrich  a  state,  and  ex- 
tend her  frontiers,  it  renders  her  odious  to  other  nations,  and 
exposes  her  to  the  danger  of  being  crushed  by  them.  Besides, 
do  opulence  and  extent  of  dominion  always  constitute  the 
happiness  of  states  ?  Amidst  the  multitude  of  examples 
which  might  here  be  quoted,  let  us  confine  our  view  to  that 
of  the  Romans.  The  Roman  republic  ruined  herself  by  her 
triumphs,  by  the  excess  of  her  conquests  and  power.  Rome, 
when  mistress  of  the  world,  but  enslaved  by  tyrants  and  op- 
pressed by  a  military  government,  had  reason  to  deplore 
the  success  of  her  arms,  and  to  look  back  with  regret  on 
those  happy  times  when  her  power  did  not  extend  beyond  the 
bounds  of  Italy,  or  even  when  her  dominion  was  almost  con- 
fined within  the  circuit  of  her  walls. 

Vicious  motives  are  those  which  have  not  for  their  object  Vicious 
the  good  of  the  state,  and  which,  instead  of  being  drawn  from  motives, 
that  pure  source,  are  suggested  by  the  violence  of  the  passions. 
Such  are  the  arrogant  desire  of  command,  the  ostentation  of 
power,  the  thirst  of  riches,  the  avidity  of  conquest,  hatred, 
and  revenge. 

The  whole  right  of  the  nation,  and  consequently  of  the  §  31.   war 
sovereign,  is  derived  from  the  welfare  of  the  state ;   and  by  undertaken 
this  rule  it  is  to  be  measured.    The  obligation  to  promote  and  uP°n  Just 
maintain  the  true  welfare  of  the  society  or  state  gives  the  JJJu£j* 
nation  a  right  to  take  up  arms  against  him  who  threatens  or  vicious  mo, 
attacks  that  valuable  enjoyment.     But  if  a  nation,  on  an  in-  tives. 
jury  done  to  her,  is  induced  to  take  up  arms,  not  by  the  ne-  [  304  ] 
cessity  of  procuring  a  just  reparation,  but  by  a  vicious  motive, 
she  abuses  her  right.    The  viciousness  of  the  motive  tarnishes 
the  lustre  of  her  arms,  which  might  otherwise  have  shone  in 
the  cause  of  justice : — the  war  is  not  undertaken  for  the  law- 
ful cause  which  the  nation  had  to  engage  in  it :  that  cause  is 
now  no  more  than  a  pretext.    As  to  the  sovereign  in  particu- 
lar, the  ruler  of  the  nation — what  right  has  he  to  expose  the 
safety  of  the  state,  with  the  lives  and  fortunes  of  the  citizens, 
to  gratify  his  passions  ?     It  is  only  for  the  good  of  the  nation 

405 


304  OP  THE   JUST   CAUSES   OP  WAR. 

BOOK  in.    that  the  supreme  power  is  intrusted  to  him ;  and  it  is  with 
_CHAP.JII^  tnat  yjew  tnat  he  ^gi^  to  exert  ^ .  that  is  the  Okject  pre. 

scribed  to  him  even  in  his  least  important  measures  :  and  shall 
he  undertake  the  most  important  and  the  most  dangerous, 
from  motives  foreign  or  contrary  to  that  great  end  ?  Yet 
nothing  is  more  common  than  such  a  destructive  inversion  of 
views ;  and  it  is  remarkable,  that,  on  this  account,  the  judicious 
Polybius  gives  the  name  of  causes*  to  the  motives  on  which 
war  is  undertaken, — and  of  pretexts^  to  the  justificatory  rea- 
sons alleged  in  defence  of  it.  Thus  he  informs  us  that  the 
cause  of  the  war  which  Greece  undertook  against  the  Persians 
was  the  experience  she  had  had  of  their  weakness,  and  that 
the  pretext  alleged  by  Philip,  or  by  Alexander  after  him,  was 
the  desire  of  avenging  the  injuries  which  the  Greeks  had  so 
often  suffered,  and  of  providing  for  their  future  safety. 
g  32.  Pre-  Let  us,  however,  entertain  a  better  opinion  of  nations  and 
texts.  their  rulers.  There  are  just  causes  of  war,  real  justificatory 
reasons ;  and  why  should  there  not  be  sovereigns  who  sincerely 
consider  them  as  their  warrant,  when  they  have  besides  rea- 
sonable motives  for  taking  up  arms  ?  We  shall  therefore  give 
the  name  of  pretexts  to  those  reasons  alleged  as  justificatory, 
but  which  are  so  only  in  appearance,  or  which  are  even  abso- 
lutely destitute  of  all  foundation.  The  name  of  pretexts  may 
likewise  be  applied  to  reasons  which  are,  in  themselves,  true 
and  well-founded,  but,  not  being  of  sufficient  importance  for 
undertaking  a  war,  are  made  use  of  only  to  cover  ambitious 
views,  or  some  other  vicious  motive.  Such  was  the  complaint 
of  the  czar  Peter  I.  that  sufficient  honours  had  not  been  paid 
him  on  his  passage  through  Riga.  His  other  reasons  for  de- 
claring war  against  Sweden  I  here  omit. 

Pretexts  are  at  least  a  homage  which  unjust  men  pay  to 
justice.  He  who  screens  himself  with  them  shows  that  he 
still  retains  some  sense  of  shame.  He  does  not  openly 
trample  on  what  is  most  sacred  in  human  society :  he  tacitly 
acknowledges  that  a  flagrant  injustice  merits  the  indignation 
of  all  mankind. 

g  33.   War       Whoever,  without  justificatory  reasons,  undertakes  a  war 

undertaken  merely  from  motives  of  advantage,  acts  without  any  right, 

adTanta^e    &n^  ^a  war  *s  unjus*;'     And  ^e,  who,  having  in  reality  just 

grounds  for  taking  up  arms,  is  nevertheless  solely  actuated 

by  interested  views  in  resorting  to  hostilities,  cannot  indeed 

be  charged  with  injustice,  but  he  betrays  a  vicious  disposition : 

his  conduct  is  reprehensible,  and  sullied  by  the  badness  of 

his  motives.     War  is  so  dreadful  a  scourge,  that  nothing  less 

than  manifest  justice,  joined  to  a  kind  of  necessity,   can 

authorize  it,  render  it  commendable,  or  at  least  exempt  it  from 

reproach. 

g  34.   Na-       Nations  that  are  always  ready  to  take  up  arms  on  any  pros- 

*  Ainui.     Histor.  lib.  iii.  cap.  6. 
406 


make  war 
t  rea- 


OF   THE  JUST   CAUSES   OF   WAR.  305 

pect  of  advantage,  are  lawless  robbers  :  but  those  who  seem  BOOK  m. 
to  delight  in  the  ravages  of  war,  who  spread  it  on  all  sides,  CHAP-  m- 
without  reasons  or  pretexts,  and  even  without  any  other  mo- tions  wh 
tive  than  their  own  ferocity,  are  monsters,  unworthy  the  name  m.£ 
of  men.  They  should  be  considered  as  enemies  to  the  human  gon  or  ap_ 
race,  in  the  same  manner  as,  in  civil  society,  professed  assas-  parent  mo 
sins  and  incendiaries  are  guilty,  not  only  towards  the  parti- tives- 
cular  victims  of  their  nefarious  deeds,  but  also  towards  the 
state,  which  therefore  proclaims  them  public  enemies.  All 
nations  have  a  right  to  join  in  a  confederacy  for  the  purpose 
of  punishing  and  even  exterminating  those  savage  nations. 
Such  were  several  German  tribes  mentioned  by  Tacitus — 
such  those  barbarians  who  destroyed  the  Roman  empire  :  nor 
was  it  till  long  after  their  conversion  to  Christianity  that  this 
ferocity  wore  off.  Such  have  been  the  Turks  and  other  Tar- 
tars— Genghis-khan,  Timur  Bee  or  Tamerlane,  who,  like  At- 
tila,  were  scourges  employed  by  the  wrath  of  Heaven,  and  who 
made  war  only  for  the  pleasure' of  making  it.  Such  are,  in  po- 
lished ages  and  among  the  most  civilized  nations,  those  supposed 
heroes,  whose  supreme  delight  is  a  battle,  and  who  make  war 
from  inclination  purely,  and  not  from  love  to  their  country. 

Defensive  war  is  just  when  made  against  an  unjust  aggres-  ?  35-    Ho 
sor.     This  requires  no  proof.     Self-defence  against   unjust defensiye 
violence  is  not  only  the  right,  but  the  duty  of  a  nation,  and  ^unjust!' 
one  of  her  most  sacred  duties.     But  if  the  enemy  who  wages 
offensive  war  has  justice  on  his  side,  we  have  no  right  to 
make  forcible  opposition ;  and   the  defensive  war  then  be- 
comes unjust :  for  that  enemy  only  exerts  his  lawful  right : — 
he  took  arms  only  to  obtain  justice  which  was  refused  to  him ; 
and  it  is  an  act  of  injustice  to  resist  any  one  in  the  exertion 
of  his  right. 

All  that  remains  to  be  done  in  such  a  case  is,  to  offer  the  ? 36-  H°' 
invader  a  just  satisfaction.  If  he  will  not  be  content  with lt  ma^  be~ 
this,  a  nation  gains  one  great  advantage — that  of  having  ag^nst^n 
turned  the  balance  of  justice  on  her  own  side;  and  his  hos- offensive 
tilities,  now  becoming  unjust,  as  having  no  longer  any  founda-  war  which 
tion,  may  very  justly  be  opposed.  **  first  waa 

The  Samnites,  instigated  by  the  ambition  of  their  chiefs, just" 
had  ravaged  the  lands  of  the  allies  of  Rome.  When  they 
became  sensible  of  their  misconduct,  they  offered  full  repara- 
tion for  the  damages,  with  every  reasonable  satisfaction :  but 
all  their  submissions  could  not  appease  the  Romans  ;  where- 
upon Caius  Pontius,  general  of  the  Samnites,  said  to  his  men, 
"  Since  the  Romans  are  absolutely  determined  on  war,  neces- 
sity justifies  it  on  our  side ;  an  appeal  to  arms  becomes 
lawful  on  the  part  of  those  who  are  deprived  of  every  other 
resource." — Justum  est  bellum,  quibus  necessarium;  et  pia 
arma,  quibus  nulla  nisi  in  armis  relinquitur  spes.* 

*  Livy,  lib.  ix.  kit 

407 


305  OF   THE   JUST   CAUSES   OF   WAR. 

BOOK.  m.       In  order  to  estimate  the  justice  of  an  offensive  war,  the 
CHAP.  m._  nature  Of  the  subject  for  which  a  nation  takes  up  arms  must 
2  37.    How  be  nrst  considered.     We  should  be  thoroughly  assured  of  our 
war°i?°uste  r*&nt'  Defbre  we  proceed  to  assert  it  in  so  dreadful  a  manner. 
i^Ju^evi-     If?  therefore,  the  question  relates  to  a  thing  which  is  evident- 
dent  cause,  ly  just,  as  the  recovery  of  our  property,  the  assertion  of  a 
[  306  ]  clear  and  incontestable  right,  or  the  attainment  of  just  satis- 
faction for  a  manifest  injury,  and  if  we  cannot  obtain  justice 
otherwise  than  by  force  of  arms,  offensive  war  .becomes  law- 
ful.    Two  things  are  therefore  necessary  to  render  it  just : 
1,  some  right  which  is  to  be  asserted — that  is  to  say,  that  we 
be  authorized  to  demand  something  of  another   nation :    2, 
that  we  be  unable  to  obtain  it  otherwise  than  by  force  of 
arms.     Necessity  alone  warrants  the  use  of  force.     It  is  a 
dangerous  and  terrible  resource.     Nature,  the  common  pa- 
rent of  mankind,  allows  of  it  only  in  cases  of  the  last  ex- 
tremity, and  when  all  other  means  fail.     It  is  doing  wrong  to 
a  nation,  to  make  use  of  violence  against  her,  before  we  know 
whether  she  be  disposed  to  do  us  justice,  or  to  refuse  it. 

Those  who,  without  trying  pacific  measures,  run  to  arms 
on  every  trifling  occasion,  sufficiently  show  that  justificatory 
reasons  are,  in  their  mouths,  mere  pretexts :  they  eagerly 
seize  the  opportunity  of  indulging  their  passions  and  gratify- 
ing their  ambition  under  some  colour  of  right. 

§  38.  In  a  In  a  doubtful  cause,  where  the  rights  are  uncertain,  ob- 
doubtfui  scure  and  disputable,  all  that  can  be  reasonably  required 
o*"86-  is,  that  the  question  be  discussed  (Book  II.  §  331),  and  that, 
if  it  be  impossible  fully  to  clear  it  up,  the  contest  be  termi- 
nated by  an  equitable  compromise.  If,  therefore,  one  of  the 
parties  should  refuse  to  accede  to  such  conciliatory  measures, 
the  other  is  justifiable  in  taking  up  arms  to  compel  him  to  an 
accommodation.  And  we  must  observe,  that  war  does  not 
decide  the  question :  victory  only  compels  the  vanquished  to 
subscribe  to  the  treaty  which  terminates  the  difference.  It  is 
an  error,  no  less  absurd  than  pernicious,  to  say  that  war  is  to 
decide  controversies  between  those  who  acknowledge  no  supe- 
rior judge — as  is  the  case  with  nations.  Victory  usually  fa- 
vours the  cause  of  strength  and  prudence,  rather  than  that 
of  right  and  justice.  It  would  be  a  bad  rule  of  decision  ;  but 
it  is  an  effectual  mode  of  compelling  him  who  refuses  to  ac- 
cede to  such  measures  as  are  consonant  to  justice ;  and  it 
becomes  just  in  the  hands  of  a  prince  who  uses  it  seasonably, 
and  for  a  lawful  cause. 

§  39.   War       War  cannot  be  just  on  both  sides.     One  party  claims  a 
cannot  ba     right ;  the  other  disputes  it :  the  one  complains  of  an  injury ; 

JSjs°n  b°th  *ke  Ot^er  ^en^es  nav^ng  done  it.  They  may  be  considered 
as  two  individuals  disputing  on  the  truth  of  a  proposition ; 
and  it  is  impossible  that  two  contrary  sentiments  should  be 
true  at  the  same  time. 

$  40.  Some-     It  may  however  happen  that  both  the  contending  parties 


OF   THE  JUST   CAUSES   OF   WAR.  306 

are  candid  and  sincere  in  their  intentions ;  and,  in  a  doubtful    BOOK  in. 
cause,  it  is  still  uncertain  which  side  is  in  the  right.    Where-  ,CHAF-  "*• 
fore,  since  nations  are  equal  and  independent  (Book  II.  §  36, times  re- 
and  Prelim.  §§  18,  19),  and  cannot  claim  a  right  of  judgment  j™jtecU 
over  each  other,  it  follows,  that  in  every  case  susceptible  of  r '  307  -j 
doubt,  the  arms  of  the  two  parties  at  war  are  to  be  accounted 
equally  lawful,  at  least  as  to  external  effects,  and  until  the 
decision  of  the  cause.     But  neither  does  that  circumstance 
deprive  other  nations  of  the   liberty  of  forming  their  own 
judgment  on  the  case,  in  order  to  determine  how  they  are  to 
act,  and  to  assist  that  party  who  shall  appear  to  have  right  on 
his  side ;  nor  does  that  effect  of  the  independence  of  nations 
operate  in  exculpation  of  the  author  of  an  unjust  war,  who 
certainly  incurs  a  high  degree  of  guilt.     But  if  he  acts  in 
consequence  of  invincible  ignorance  or  error,  the  injustice  of 
his  arms  is  not  imputable  to  him. 

When  offensive  war  has  for  its  object  the  punishment  of  a  §  41.  War 
nation,  it  ought,  like  every  other  war,  to  be  founded  on  right  undertaken 
and  necessity.  1.  On  right : — an  injury  must  have  been  ac-  ^°a^"°isl1  a 
tually  received.  Injury  alone  being  a  just  cause  of  war 
(§  26),  the  reparation  of  it  may  be  lawfully  prosecuted :  or 
if,  in  its  nature,  it  be  irreparable  (the  only  case  in  which  we 
are  allowed  to  punish),  we  are  authorized  to  provide  for  our 
own  safety,  and  even  for  that  of  all  other  nations,  by  inflict- 
ing on  the  offender  a  punishment  capable  of  correcting  him, 
and  serving  as  an  example  to  others.  2.  A  war  of  this  kind 
must  have  necessity  to  justify  it :  that  is  to  say,  that,  to  be 
lawful,  it  must  be  the  only  remaining  mode  to  obtain  a  just 
satisfaction  ;  which  implies  a  reasonable  security  for  the  time 
to  come.  If  that  complete  satisfaction  be  offered,  or  if  it 
may  be  obtained  without  a  war,  the  injury  is  done  away,  and 
the  right  to  security  no  longer  authorizes  us  to  seek  ven- 
geance for  it.— (See  Book  II.  §§  49,  52.) 

The  nation  in  fault  is  bound  to  submit  to  a  punishment 
which  she  has  deserved,  and  to  suffer  it  by  way  of  atonement : 
but  she  is  not  obliged  to  give  herself  up  to  the  discretion  of 
an  incensed  enemy.  Therefore,  when  attacked  she  ought  to 
make  a  tender  of  satisfaction,  and  ask  what  penalty  is  re- 
quired ;  and  if  no  explicit  answer  be  given,  or  the  adversary 
attempts  to  impose  a  disproportionate  penalty,  she  then  ac- 
quires a  right  to  resist,  and  her  defence  becomes  lawful. 

On  the  whole,  however,  it  is  evident  that  the  offended  party 
alone  has  a  right  to  punish  independent  persons.  We  shall 
not  here  repeat  what  we  have  said  elsewhere  (Book  II.  §  7) 
of  the  dangerous  mistake,  or  extravagant  pretensions,  of  those 
who  assume  a  right  of  punishing  an  independent  nation  for 
faults  which  do  not  concern  them — who,  madly  setting  them- 
selves up  as  defenders  of  the  cause  of  God,  take  upon  them 
to  punish  the  moral  depravity,  or  irreligion,  of  a  people  not 
committed  to  their  superintendency. 

52  2  K  409 


307  OF   THE  JUST   CAUSES   OF   WAR,  ETC. 

BOOK  in.        Here  a  very  celebrated  question,  and  of  the  highest  impor- 
CHAP.  m    tance,  presents  itself.     It  is  asked,  whether  the  aggrandize- 


§  42.  Who-  ment  of  a  neighbouring  power,  by  whom  a  nation  fears  she 
ther  the  ag-  may  One  day  be  crushed,  be  a  sufficient  reason  for  making 
grandize-  war  agajnst  nim — whether  she  be  justifiable  in  taking  up 
neighbour-  arm3  to  oppose  his  aggrandizement,  or  to  weaken  him,  with 
ing°power  the  sole  view  of  securing  herself  from  those  dangers  which 
can  autho-  the  weaker  states  have  almost  always  reason  to  apprehend 
^ain  T  fr°m  an  overgrown  power.  To  the  majority  of  politicians 
im>  this  question  is  no  problem :  it  is  more  difficult  of  solution  to 
[  308  ]  those  who  wish  to  see  justice  and  prudence  ever  inseparably 
united. 

On  the  one  hand,  a  state  that  increases  her  power  by  all 
the  arts  of  good  government,  does  no  more  than  what  is  com- 
mendable— she  fulfils  her  duties  towards  herself  without 
violating  those  which  she  owes  to  other  nations.  The  sove- 
reign, who,  by  inheritance,  by  free  election,  or  by  any  other 
just  and  honourable  means,  enlarges  his  dominions  by  the  ad- 
dition of  new  provinces  or  entire  kingdoms,  only  makes  use 
of  his  right,  without  injuring  any  person.  How  then  should 
it  be  lawful  to  attack  a  state  which,  for  its  aggrandizement, 
makes  use  only  of  lawful  means  ?  We  must  either  have  actu- 
ally suffered  an  injury  or  be  visibly  threatened  with  one, 
before  we  are  authorized  to  take  up  arms,  or  have  just 
grounds  for  making  war  (§§  26,  27).  On  the  other  hand,  it  is 
but  too  well  known,  from  sad  and  uniform  experience,  that 
predominating  powers  seldom  fail  to  molest  their  neighbours, 
to  oppress  them,  and  even  totally  subjugate  them,  whenever 
an  opportunity  occurs,  and  they  can  do  it  with  impunity. 
Europe  was  on  the  point  of  falling  into  servitude  for  want  of 
a  timely  opposition  to  the  growing  fortune  of  Charles  V.  Is 
the  danger  to  be  waited  for  ?  Is  the  storm,  which  might  be 
dispersed  at  its  rising,  to  be  permitted  to  increase  ?  Are  we 
to  allow  of  the  aggrandizement  of  a  neighbour,  and  quietly 
wait  till  he  makes  his  preparations  to  enslave  us  ?  Will  it 
be  a  time  to  defend  ourselves  when  we  are  deprived  of  the 
means  ?  Prudence  is  a  duty  incumbent  on  all  men,  and  most 
pointedly  so  on  the  heads  of  nations,  as  being  commissioned 
to  watch  over  the  safety  of  a  whole  people.  Let  us  endea- 
vour to  solve  this  momentous  question,  agreeably  to  the  sacred 
principles  of  the  law  of  nature  and  of  nations.  We  shall  find 
that  they  do  not  lead  to  weak  scruples,  and  that  it  is  an  inva- 
riable truth  that  justice  is  inseparable  from  sound  policy. 
\  43.  Alone,  And  first,  let  us  observe,  that  prudence,  which  is,  no  doubt, 
and  of  itself,  a  virtue  highly  necessary  in  sovereigns,  can  never  recommend 
^iveTrf  ht  t^ie  use  °^  unlawful  means  for  the  attainment  of  a  just  and 
toTttaci?  laudable  end.  Let  not  the  safety  of  the  people,  that  supreme 
him.  law  of  the  state,  be  alleged  here  in  objection ;  for  the  very 

safety  of  the  people  itself,  and  the  common  safety  of  nations, 
prohibit  the  use  of  means  which  are  repugnant  to  justice  and 

410 


OF  THE   JUST   CAUSES   OF  WAR,    ETC.  308 

probity.     Why  are  certain  means  unlawful  ?     If  we  closely   BOOK  1U- 
consider  the  point,  if  we  trace  it  to  its  first  principles,  we  shall   CHAP'  m' 
see  that  it  is  purely  because  the  introduction  of  them  would 
be  pernicious  to  human  society,  and  productive  of  fatal  con- 
sequences to  all  nations.     See  particularly  what  we  have  said 
concerning  the  observance  of  justice  (Book  II.  Chap.  V.). 
For  the  interest,  therefore,  and  even  the  safety  of  nations, 
we  ought  to  hold  it  as  a  sacred  maxim,  that  the  end  does  not 
sanctify  the  means.     And  since  war  is  not  justifiable  on  any  [  309  ] 
other  ground  than  that  of  avenging  an  injury  received,  or 
preserving  ourselves  from  one  with  which  we  are  threatened 
(§  26),  it  is  a  sacred  principle  of  the  law  of  nations,  that  an 
increase  of  power  cannot,  alone  and  of  itself,  give  any  one  a 
right  to  take  up  arms  in  order  to  oppose  it. 

No  injury  has  been  received  from  that  power  (so  the  question  2  44-  How 
supposes) ;  we  must,  therefore,  have  good  grounds  to  think the  aPP*ar- 
ourselves  threatened  by  him,  before  we  can  lawfully  have  re-^gSJgive 
course  to  arms.  Now  power  alone  does  not  threaten  an  in-  that  right 
jury : — it  must  be  accompanied  by  the  will.  It  is,  indeed, 
very  unfortunate  for  mankind,  that  the  will  and  inclination 
to  oppress  may  be  almost  always  supposed,  where  there  is  a 
power  of  oppressing  with  impunity.  But  these  two  things 
are  not  necessarily  inseparable :  and  the  only  right  which  we 
derive  from  the  circumstance  of  their  being  generally  or  fre- 
quently united,  is,  that  of  taking  the  first  appearances  for  a 
sufficient  indication.  When  once  a  state  has  given  proofs  of 
injustice,  rapacity,  pride,  ambition,  or  an  imperious  thirst  of 
rule,  she  becomes  an  object  of  suspicion  to  her  neighbours, 
whose  duty  it  is  to  stand  on  their  guard  against  her.  They 
may  come  upon  her  at  the  moment  when  she  is  on  the  point 
of  acquiring  a  formidable  accession  of  power, — may  demand 
securities, — and  if  she  hesitates  to  give  them,  may  prevent 
her  designs  by  force  of  arms.  The  interests  of  nations  are, 
in  point  of  importance,  widely  different  from  those  of  indi- 
viduals :  the  sovereign  must  not  be  remiss  in  his  attention  to 
them,  nor  suffer  his  generosity  and  greatness  of  soul  to  super- 
sede his  suspicions.  A  nation  that  has  a  neighbour  at  once 
powerful  and  ambitious  has  her  all  at  stake.  As  men  are 
under  a  necessity  of  regulating  their  conduct  in  most  cases 
by  probabilities,  those  probabilities  claim  their  attention  in 
proportion  to  the  importance  of  the  subject :  and  (to  make 
use  of  a  geometrical  expression)  their  right  to  obviate  a  dan- 
ger is  in  a  compound  ratio  of  the  degree  of  probability  and 
the  greatness  of  the  evil  threatened.  If  the  evil  in  question 
be  of  a  supportable  nature, — if  it  be  only  some  slight  loss, — 
matters  are  not  to  be  precipitated :  there  is  no  great  danger 
in  delaying  our  opposition  to  it  till  there  be  a  certainty  of 
our  being  threatened.  But  if  the  safety  of  the  state  lies  at 
stake,  our  precaution  and  foresight  cannot  be  extended  too 
far.  Must  we  delay  to  avert  our  ruin  till  it  is  become  inevi- 

411 


309  OF   THE   JUST   CAUSES    OF   WAR,  ETC. 

BOOK  in.  table  ?  If  the  appearances  are  so  easily  credited,  it  is  the 
.f.HAp.  ""•  fault  of  that  neighbour  who  has  betrayed  his  ambition  by 
several  indications.  If  Charles  the  Second,  King  of  Spain, 
instead  of  settling  the  succession  on  the  Duke  of  Anjou,  had 
appointed  for  his  heir  Louis  XIV.  himself — to  have  tamely 
suffered  the  union  of  the  monarchy  of  Spain  with  that  of 
France,  would,  according  to  all  the  rules  of  human  foresight, 
have  been  nothing  less  than  delivering  up  all  Europe  to  ser- 
vitude, or  at  least  reducing  it  to  the  most  critical  and  preca- 
rious situation.  But  then,  if  two  independent  nations  think 
fit  to  unite,  so  as  afterwards  to  form  one  joint  empire,  have 
they  not  a  right  to  do  it  ?  And  who  is  authorized  to  oppose 
[  810  ]  them  ?  I  answer,  they  have  a  right  to  form  such  a  union,  pro- 
vided the  views  by  which  they  are  actuated  be  not  prejudicial 
to  other  states.  Now,  if  each  of  the  two  nations  in  question 
be,  separately  and  without  assistance,  able  to  govern  and  sup- 
port herself,  and  to  defend  herself  from  insult  and  oppression, 
it  may  be  reasonably  presumed  that  the  object  of  their  coali- 
tion is  to  domineer  over  their  neighbours.  And,  on  occasions 
where  it  is  impossible  or  too  dangerous  to  wait  for  an  abso- 
lute certainty,  we  may  justly  act  on  a  reasonable  presumption. 
If  a  stranger  levels  a  musket  at  me  in  the  middle  of  a  forest, 
I  am  not  yet  certain  that  he  intends  to  kill  me :  but  shall  I, 
in  order  to  be  convinced  of  his  design,  allow  him  time  to  fire  ? 
What  reasonable  casuist  will  deny  me  the  right  to  anticipate 
him  ?  But  presumption  becomes  nearly  equivalent  to  certainty, 
if  the  prince  who  is  on  the  point  of  rising  to  an  enormous 
power  has  already  given  proofs  of  imperious  pride  and  insa- 
tiable ambition.  In  the  preceding  supposition,  who  could 
have  advised  the  powers  of  Europe  to  suffer  such  a  formidable 
accession  to  the  power  of  Louis  the  Fourteenth  ?  Too  certain 
of  the  use  he  would  have  made  of  it,  they  would  have  joined 
in  opposing  it:  and  in  this  their  safety  warranted  them.  To 
say  that  they  should  have  allowed  him  time  to  establish  his 
dominion  over  Spain,  and  consolidate  the  union  of  the  two 
monarchies, — and  that,  for  fear  of  doing  him  an  injury,  they 
should  have  quietly  waited  till  he  crushed  them  all, — would 
not  this  be,  in  fact,  depriving  mankind  of  the  right  to  regulate 
their  conduct  by  the  dictates  of  prudence,  and  to  act  on  the 
ground  of  probability  ?  Would  it  not  be  robbing  them  of  the 
liberty  to  provide  for  their  own  safety,  as  long  as  they  have 
not  mathematical  demonstration  of  its  being  in  danger  ?  It 
would  have  been  in  vain  to  have  preached  such  a  doctrine. 
The  principal  sovereigns  of  Europe,  habituated,  by  the  ad- 
ministration of  Louvois,  to  dread  the  views  and  power  of  Louis 
XIV.,  carried  their  mistrust  so  far,  that  they  would  not  even 
suffer  a  prince  of  the  house  of  France  to  sit  on  the  throne  of 
Spain,  though  invited  to  it  by  the  nation,  whose  approbation 
had  sanctioned  the  will  of  her  former  sovereign.  He  ascend- 
ed it,  however,  notwithstanding  the  efforts  of  those  who  so 
412 


OF   THE   JUST   CAUSES   OF  WAR,    ETC.  310 

strongly  dreaded  his  elevation ;  and  it  has  since  appeared  that    BOOK  m. 
their  policy  was  too  suspicious.  CHAP-  m- 

It  is  still  easier  to  prove,  that,  should  that  formidable  pow-  §  45.   An- 
er  betray  an  unjust  and  ambitious  disposition,  by  doing  the  other  caf e 
least  injustice  to  another,  all  nations  may  avail  themselves  of  ™e°™  evi" 
the  occasion,  and,  by  joining  the  injured  party,  thus  form  a 
coalition  of  strength,  in  order  to  humble  that  ambitious  poten- 
tate, and  disable  him  from  so  easily  oppressing  his  neighbours, 
or  keeping  them  in  continual  awe  and  fear.     For  an  injury 
gives  us  a  right  to  provide  for  our  future  safety,  by  depriving 
the  unjust  aggressor  of  the  means  of  injuring  us ;  and  it 
is  lawful  and  even  praiseworthy  to  assist  those  who  are  op- 
pressed, or  unjustly  attacked. 

Enough  has  been  said  on  this  subject,  to  set  the  minds  of 
politicians  at  ease,  and  relieve  them  from  all  apprehension 
that  a  strict  and  punctilious  observance  of  justice  in  this  par-  [  311  ] 
ticular  would  pave  the  way  to  slavery.  It  is  perhaps  wholly 
unprecedented  that  a  state  should  receive  any  remarkable  ac- 
cession of  power,  without  giving  other  states  just  causes  of 
complaint.  Let  the  other  nations  be  watchful  and  alert  in 
repressing  that  growing  power,  and  they  will  have  nothing 
to  fear.  The  emperor  Charles  V.  laid  hold  on  the  pretext  of 
religion,  in  order  to  oppress  the  princes  of  the  empire,  and 
subject  them  to  his  absolute  authority.  If,  by  following  up 
his  victory  over  the  elector  of  Saxony,  he  had  accomplished 
that  vast  design,  the  liberties  of  all  Europe  would  have  been 
endangered.  It  was  therefore  with  good  reason  that  France 
assisted  the  protestants  of  Germany : — the  care  of  her  own 
safety  authorized  and  urged  her  to  the  measure.  When  the 
same  prince  seized  on  the  duchy  of  Milan,  the  sovereigns  of 
Europe  ought  to  have  assisted  France  in  contending  with 
him  for  the  possession  of  it,  and  to  have  taken  advantage  of 
the  circumstance,  in  order  to  reduce  his  power  within  just 
bounds.  Had  they  prudently  availed  themselves  of  the  just 
causes  which  he  soon  gave  them  to  form  a  league  against  him, 
they  would  have  saved  themselves  the  subsequent  anxieties 
for  their  tottering  liberty. 

But,  suppose  that  powerful  state,  by  the  justice  and  circum-  ?  46.  Other 
spection  of  her  conduct,  affords  us  no  room  to  take  exception  allowable 
to  her  proceedings,  are  we  to  view  her  progress  with  an  eye  ™efe^e°f 
of  indifference?     Are  we  to  remain  quiet  spectators  of  the^/ingta 
rapid  increase  of  her  power,  and  imprudently  expose  ourselves  formidable 
to  such  designs  as  it  may  inspire  her  with  : — No,  beyond  all  power, 
doubt.     In  a  matter  of  so  high  importance,  imprudent  supine- 
ness  would  be  unpardonable.     The  example  of  the  Romans 
is  a  good  lesson  for  all  sovereigns.     Had  the  potentates  of 
those  times  concerted  together  to  keep  a  watchful  eye  on 
the  enterprises  of  Rome,  and  to  check  her  incroachments, 
they  would  not  have  successively  fallen  into  servitude.     But 
force  of  arms  is  not  the  only  expedient  by  which  we  may 

2  K  2  413      ' 


OF   THE   JUST   CAUSES   OF  WAR,    ETC. 


311 

BOOK  in.  guard  against  a  formidable  power.  There  are  other  means, 
_CHAP.  in.  Qf  a  gentler  nature,  and  which  are  at  all  times  lawful.  The 
most  effectual  is  a  confederacy  of  the  less  powerful  sovereigns, 
who,  by  this  coalition  of  strength,  become  able  to  hold  the 
balance  against  that  potentate  whose  power  excites  their 
alarms.  Let  them  be  firm  and  faithful  in  their  alliance ;  and 
their  union  will  prove  the  safety  of  each. 

They  may  also  mutually  favour  each  other,  to  the  exclusion 
of  him  whom  they  fear ;  and  by  reciprocally  allowing  various 
advantages  to  the  subjects  of  the  allies,  especially  in  trade, 
and  refusing  them  to  those  of  that  dangerous  potentate,  they 
will  augment  their  own  strength,  and  diminish  his,  without 
affording  him  any  just  cause  of  complaint,  since  every  one  is 
at  liberty  to  grant  favours  and  indulgences  at  his  own  pleasure. 
§  47.  Poiiti-  Europe  forms  a  political  system,  an  integral  body,  closely 
cai  equiiibri-  connected  by  the  relations  and  different  interests  of  the  na- 
tions inhabiting  this  part  of  the  world.  It  is  not,  as  formerly, 
[  312  ]  a  confused  heap  of  detached  pieces,  each  of  which  thought 
herself  very  little  concerned  in  the  fate  of  the  others,  and 
seldom  regarded  things  which  did  not  immediately  concern 
her.  The  continual  attention  of  sovereigns  to  every  occur- 
rence, the  constant  residence  of  ministers,  and  the  perpetual 
negotiations,  make  of  modern  Europe  a  kind  of  republic,  of 
which  the  members — each  independent,  but  all  linked  together 
by  the  ties  of  common  interest — unite  for  the  maintenance 
of  order  and  liberty.  Hence  arose  that  famous  scheme  of 
the  political  balance,  or  the  equilibrium  of  power ;  by  which 
is  understood  such  a  disposition  of  things,  as  that  no  one  po- 
tentate be  able  absolutely  to  predominate,  and  prescribe  laws 
to  the  others. 

§  48.  Ways  The  surest  means  of  preserving  that  equilibrium  would  be, 
of  main-  ^hat  no  power  should  be  much  superior  to  the  others,  that  all, 
taming  it  Qr  a^.  ]eas£  ^g  greater  part,  should  be  nearly  equal  in  force. 
Such  a  project  has  been  attributed  to  Henry  the  Fourth:* 
but  it  would  have  been  impossible  to  carry  it  into  execution 
without  injustice  and  violence.  Besides,  suppose  such  equality 
once  established,  how  could  it  always  be  maintained  by  lawful 
means  ?  Commerce,  industry,  military  pre-eminence,  would 
soon  put  an  end  to  it.  The  right  of  inheritance,  vesting  even 
in  women  and  their  descendants, — a  rule,  which  it  was  so 
absurd  to  establish  in  the  case  of  sovereignties,  but  which 
nevertheless  is  established, — would  completely  overturn  the 
whole  system. 

It  is  a  more  simple,  an  easier,  and  a  more  equitable  plan, 
to  have  recourse  to  the  method  just  mentioned,  of  forming 
confederacies  in  order  to  oppose  the  more  powerful  potentate, 
and  prevent  him  from  giving  law  to  his  neighbours.  Such  is 
the  mode  at  present  pursued  by  the  sovereigns  of  Europe. 


*  Of  France. 
414 


OF   THE   JUST   CAUSES   OF  WAE,    ETC.  312 

They  consider  the  two  principal  powers,  which,  on  that  very  BOOK  m. 
account,  are  naturally  rivals,  as  destined  to  be  checks  on  each  CHAP-  m- 
other ;  and  they  unite  with  the  weaker,  like  so  many  weights 
thrown  into  the  lighter  scale,  in  order  to  keep  it  in  equilibrium 
with  the  other.  The  house  of  Austria  has  long  been  the 
preponderating  power :  at  present  France  is  so  in  her  turn. 
England,  whose  opulence  and  formidable  fleets  have  a  power- 
ful influence,  without  alarming  any  state  on  the  score  of  its 
liberty,  because  that  nation  seems  cured  of  the  rage  for  con- 
quest,— England,  I  say,  has  the  glory  of  holding  the  political 
balance.  She  is  attentive  to  preserve  it  in  equilibrium : — a 
system  of  policy,  which  is  in  itself  highly  just  and  wise,  and 
will  ever  entitle  her  to  praise,  as  long  as  she  continues  to 
pursue  it  only  by  means  of  alliances,  confederacies,  and  other 
methods  equally  lawful. 

Confederacies  would  be  a  sure  mode  of  preserving  the  equi-  g  49.   How 
librium,  and  thus  maintaining  the  liberty  of  nations,  did  all he  who  de- 
princes  thoroughly  understand  their  true  interests,  and  make  ^JJ,^ 
the  welfare  of  the  state  serve  as  the  rule  in  all  their  proceed-  may  t,e  re_ 
ings.     Great  potentates,  however,  are  but  too  successful  in  strained,  or 
gaining  over  partisans  and  allies,  who  blindly  adopt  all  their even  weak- 
views.     Dazzled  by  the  glare  of  a  present  advantage,  seduced  ened' 
by  their  avarice,  deceived  by  faithless  ministers — how  many  [  313  ] 
princes   become   the  tools  of  a  power  which  will  one  day 
swallow  up  either  themselves  or  their  successors  !     The  safest 
plan,  therefore,  is  to  seize  the  first  favourable  opportunity, 
when  we  can,  consistently  with  justice,  weaken  the  potentate 
who  destroys  the   equilibrium  (§  45) — or  to   employ  every 
honourable  means  to  prevent  his  acquiring  too  formidable  a 
degree  of  power.     For  that  purpose,  all  the  other  nations 
should  be  particularly  attentive  not  to  suffer  him  to  aggrandize 
himself  by  arms :  and  this  they  may  at  all  times  do  with  jus- 
tice.    For,  if  this  prince  makes  an  unjust  war,  every  one  has 
a  right  to  succour  the  oppressed  party.     If  he  makes  a  just 
Avar,  the  neutral  nations  may  interfere  as  mediators  for  an  ac- 
commodation— they  may  induce  the  weaker  state  to  propose 
reasonable  terms  and  offer  a  fair  satisfaction,  and  may  save 
her  from  falling  under  the  yoke  of  a  conqueror.     On  the  offer 
of  equitable  conditions  to  the  prince  who  wages  even  the  most 
justifiable  war,  he  has  all  that  he  can  demand.  The  justice  of 
his  cause,  as  we  shall  soon  sefc,  never  gives  him  a  right  to  subju- 
gate his  enemy,  unless  when  that  extremity  becomes  necessary 
to  his  own  safety,  or  when  he  has  no  other  mode  of  obtaining 
indemnification  for  the  injury  he  has  received.     Now,  that  is 
not  the  case  here,  as  the  interposing  nations  can  by  other 
means  procure  him  a  just  indemnification,  and  an  assurance 
of  safety. 

In  fine,  there  cannot  exist  a  doubt,  that,  if  that  formidable 
potentate  certainly  entertain  designs  of  oppression  and  con 
quest, — if  he  betray  his  views  by  his  preparations  and  other 

415 


313  OF    THE    JUST    CAUSES    OF   WAR,    ETC. 

BOOK  in.    proceedings, — the  other  states  have  a  right  to  anticipate  him ; 
CHAP"  '"•   and  if  the  fate  of  war  declares  in  their  favour,  they  are  justi- 


fiable in  taking  advantage  of  this  happy  opportunity  to  weak- 
en and  reduce  a  power  too  contrary  to  the  equilibrium,  and 
dangerous  to  the  common  liberty. 

This  right  of  nations  is  still  more  evident  against  a  sove- 
reign, who,  from  an  habitual  propensity  to  take  up  arms 
without  reasons,  or  even  so  much  as  plausible  pretexts,  is  con- 
tinually disturbing  the  public  tranquillity. 

g  50.    Be-        This  leads  us  to  a  particular  question,  nearly  allied  to  the 
haviourai-  preceding.     When  a  neighbour,  in  the  midst  of  a  profound 
wards1!  t°"  peace,  erects  fortresses  on  our  frontier,  equips  a  fleet,  aug- 
neighbour     ments  his  troops,  assembles  a  powerful  army,  fills  his  maga- 
preparing     zincs, — in  a  word  when  he  makes  preparations  for  war, — are 
for  war.       we  allowed  to  attack  him,  with  a  view  to  prevent  the  danger 
with  which   we   think   ourselves   threatened  ?     The   answer 
greatly  depends  on  the  manners  and  character  of  that  neigh- 
bour.    We  must  inquire  into  the  reasons  of  those  preparations, 
and  bring  him  to  an  explanation : — such  is  the  mode  of  pro- 
ceeding in  Europe :  and  if  his  sincerity  be  justly  suspected, 
securities  may  be  required  of  him.     His  refusal  in  this  case, 
would  furnish  ample  indication  of  sinister  designs,  and  a  suf- 
ficient reason  to  justify  us  in  anticipating  them.     But  if  that 
[  314  ]  sovereign  has  never  betrayed  any  symptoms  of  baseness  and 
perfidy,  and  especially  if  at  that  time  there  is  no  dispute  sub- 
sisting between  him  and  us,  why  should  we  not  quietly  rest 
on  his  word,  only  taking  such  precautions  as  prudence  ren- 
ders indispensable  ?     We  ought  not,  without  sufficient  cause, 
to  presume  him  capable  of  exposing  himself  to  infamy  by  add- 
ing perfidy  to  violence.     As  long  as  he  has  not  rendered  his 
sincerity  questionable,  we  have  no  right  to  require  any  other 
security  from  him. 

It  is  true,  however,  that,  if  a  sovereign  continues  to  keep 
up  a  powerful  army  in  profound  peace,  his  neighbours  must 
not  suffer  their  vigilance  to  be  entirely  lulled  to  sleep  by  his 
bare  word;  and  prudence  requires  that  they  should  keep 
themselves  on  their  guard.  However  certain  they  may  be  of 
the  good  faith  of  that  prince,  unforeseen  differences  may  in- 
tervene ;  and  shall  they  leave  him  the  advantage  of  being  pro- 
vided, at  that  juncture,  with  a  numerous  and  well  disciplined 
army,  while  they  themselves  will  have  only  new  levies  to  op- 
pose it  ?  Unquestionably  no.  This  would  be  leaving  them- 
selves almost  wholly  at  his  discretion.  They  are,  therefore, 
under  the  necessity  of  following  his  example,  and  keeping,  as 
he  does,  a  numerous  army  on  foot:  and  what  a  burden  is  this 
to  a  state !  Formerly,  and  without  going  any  further  back 
than  the  last  century,  it  was  pretty  generally  made  an  article 
in  every  treaty  of  peace,  that  the  belligerent  powers  should 
disarm  on  both  sides — that  they  should  disband  their  troops. 
If,  in  a  time  of  profound  peace,  a  prince  was  disposed  to  keep 

416 


OF  THE  DECLARATION   OF  WAR,   ETC.  314 

up  any  considerable  number  of  forces,  his  neighbours  took  their  BOOK  m. 
measures  accordingly,  formed  leagues  against  him,  and  obliged  CHAP'  m' 
him  to  disarm.  Why  has  not  that  salutary  custom  been  pre- 
served? The  constant  maintenance  of  numerous  armies 
deprives  the  soil  of  its  cultivators,  checks  the  progress  of 
population,  and  can  only  serve  to  destroy  the  liberties  of  the 
nation  by  whom  they  are  maintained.  Happy  England ! 
whose  situation  exempts  it  from  any  considerable  charge  in 
supporting  the  instruments  of  despotism.  Happy  Switzer- 
land !  if,  continuing  carefully  to  exercise  her  militia,  she 
keeps  herself  in  a  condition  to  repel  any  foreign  enemies, 
without  feeding  a  host  of  idle  soldiers,  who  might  one  day 
crush  the  liberties  of  the  people,  and  even  bid  defiance  to 
the  lawful  authority  of  the  sovereign.  Of  this  the  Roman 
legions  furnish  a  signal  instance.  This  happy  method  of  a 
free  republic, — the  custom  of  training  up  all  her  citizens  to 
the  art  of  war, — renders  the  state  respectable  abroad,  and 
saves  it  from  a  very  pernicious  defect  at  home.  It  would 
have  been  everywhere  imitated,  had  the  public  good  been 
everywhere  the  only  object  in  view. 

Sufficient  has  now  been  said  on  the  general  principles  for 
estimating  the  justice  of  a  war.  Those  who  are  thoroughly 
acquainted  with  the  principles,  and  have  just  ideas  of  the 
various  rights  of  nations,  will  easily  apply  the  rules  to  par- 
ticular cases. 


CHAP.  IV.  [  315  ] 

OF  THE  DECLARATION   OF  WAR, — AND   OF  WAR  IN   DUE          CHAP,  iv. 
FORM.  (142) 

THE  right  of  making  war  belongs  to  nations  only  as  a  §  51.   Da- 
remedy  against   injustice:   it   is   the   offspring  of  unhappy claration of 
necessity.     This    remedy  is  so    dreadful    in    its  effects,  sowar> 
destructive  to  mankind,  so  grievous  even  to  the  party  who 
has   recourse  to  it,  that  unquestionably  the  law  of  nature 
allows  of  it  only  in  the  last  extremity, — that  is  to  say,  when 
every  other  expedient  proves  ineffectual  for  the  maintenance 
of  justice.     It  is  demonstrated  in  the  foregoing  chapter,  that, 
in  order  to  be  justifiable  in  taking  up  arms,  it  is  necessary — 
1.  That  we  have  a  just  cause  of  complaint.     2.  That  a  rea- 
sonable satisfaction  have  been  denied  us.     3.  The  ruler  of 
the  nation,  as  we  have  observed,  ought  maturely  to  consider 

(142)  See  in  general,  Grotius,  B.  iii.  c.  iv.  a.  8;  and  1  Chitty's  Com.  Law,  378. 
— C. 

53 


315  OF   THE   DECLARATION   OF   WAR, 

BOOK  m.   whether  it  be  for  the  advantage  of  the  state  to  prosecute  his 
CHAP-  Iy-  right  by  force  of  arms.     But  all  this  is  not  sufficient.     As  it 
is  possible  that  the  present  fear  of  our  arms  may  make  an 


thereof*7  imPressi°n  on  tne  m^nd  °f  our  adversary,  and  induce  him  to 
do  us  justice,  —  we  owe  this  further  regard  to  humanity,  and 
especially  to  the  lives  and  peace  of  the  subjects,  to  declare 
to  that  unjust  nation,  or  its  chief,  that  we  are  at  length  going 
to  have  recourse  to  the  last  remedy,  and  make  use  of  open 
force,  for  the  purpose  of  bringing  him  to  reason.  This  is 
called  declaring  war.  All  this  is  included  in  the  Roman 
manner  of  proceeding,  regulated  in  their  fecial  law.  They 
first  sent  the  chief  of  the  feciales,  or  heralds,  called  pater  pa- 
tratus,  to  demand  satisfaction  of  the  nation  who  had  offended 
them  ;  and  if,  within  the  space  of  thirty-three  days,  that  na- 
tion did  not  return  a  satisfactory  answer,  the  herald  called 
the  gods  to  be  witnesses  of  the  injustice,  and  came  away,  say- 
ing that  the  Romans  would  consider  what  measures  they 
should  adopt.  The  king,  and  in  after  times  the  consul,  here- 
upon asked  the  senate's  opinion  :  and  when  war  was  resolved 
on,  the  herald  was  sent  back  to  the  frontier,  where  he  de- 
clared it.*  It  is  surprising  to  find  among  the  Romans  such  jus- 
tice, such  moderation  and  prudence,  at  a  time  too  when,  ap- 
parently, nothing  but  courage  and  ferocity  was  to  be  expected 
from  them.  By  such  scrupulous  delicacy  in  the  conduct  of 
her  wars,  Rome  laid  a  most  solid  foundation  for  her  subsequent 
greatness. 

§  52.   What     A  declaration  of  war  being  necessary,  as  a  further  effort  to 

it  is  to  con-  terminate   the  difference  without   the  effusion  of  blood,  by 

tam'  making  use  of  the  principle  of  fear,  in  order  to  bring  the 

enemy  to  more  equitable  sentiments,  —  it  ought,  at  the  same 

time  that  it  announces  our  settled  resolution  of  making  war, 

T  316  ]  to  set  forth  the  reasons  which  have  induced  us  to  take  up  arms. 

This  is,  at  present,  the  constant  practice  among  the  powers 

of  Europe. 

§  53.  it  is  After  a  fruitless  application  for  justice,  a  nation  may  pro- 
simple  or  ceed  to  a  declaration  of  war,  which  is  then  pure  and  simple. 
conditional.  gu^  ^Q  incju(je  the  whole  business  in  a  single  act,  instead  of 
two  separate  ones,  the  demand  of  justice  (called  by  the  Ro- 
mans rerum  repetitio)  may,  if  we  think  proper,  be  accompa- 
nied by  a  conditional  declaration  of  war,  notifying  that  we 
will  commence  hostilities  unless  we  obtain  immediate  satisfac- 
tion on  such  or  such  subject.  In  this  case  there  is  no  neces- 
sity for  adding  a  pure  and  simple  declaration  of  war,  —  the 
conditional  one  sufficing,  if  the  enemy  delays  giving  satis- 
faction. 

I  54.  The  If  the  enemy,  on  either  declaration  of  war,  offers  equitable 
right  to  conditions  of  peace,  we  are  bound  to  refrain  from  hostilities  ; 
make  war  for  Ag  soon  ag  justice  is  done  to  us,  that  immediately  super- 

*  Livy,  lib.  i.  cap.  31. 
413 


AND   OF  WAR  IN  DUE  FORM.  316 

sedes  all  right  to  employ  force,  which  we  are  not  allowed  to   BOOK  m. 
use  unless  for  the  necessary  maintenance  of  our  rights.     To  CHAP'  IY" 
these  offers,  however,  are  to  be  added  securities;  for  we  are the .off« of 
under  no  obligation  to  suffer  ourselves  to  be  amused  by  empty  Conditions 
proposals.     The  word  of  a  sovereign  is  a  sufficient  security,  as 
long  as  he  has  not  disgraced  his  credit  by  any  act  of  perfidy : 
and  we  should  be  contented  with  it.     As  to  the  conditions 
themselves, — besides  the  principal  subject,  we  have  a  right  to 
demand  a  reimbursement  of  the  expenses  incurred  in  our  pre- 
parations for  war. 

It  is  necessary  that  the  declaration  of  war  be  known  to  the  ?  55.   For- 
state  against  whom  it  is  made.     This  is  all  which  the  natural mallties  of  a 
law  of  nations  requires.     Nevertheless,  if  custom  has  intro-  J c  ai 
duced  certain  formalities  in  the  business,  those  nations  who, 
by  adopting  the  custom,  have  given  their  tacit  consent  to  such 
formalities,  are  under  an  obligation  of  observing  them,  as  long 
as  they  have  not  set  them   aside  by  a  public   renunciation 
(Prelim.  §  26).    Formerly,  the  powers  of  Europe  used  to  send 
heralds,  or  ambassadors  to  declare  war ;  at  present,  they  con- 
tent themselves  with  publishing  the  declaration  in  the  capital, 
in  the  principal  towns,  or  on  the  frontiers :  manifestoes  are 
issued ;  and,  through  the  easy  and  expeditious  channels  of 
communication  which  the  establishment  of  posts  now  affords, 
the  intelligence  is  soon  spread  on  every  side. 

Besides  the  foregoing  reasons,  it  is  necessary  for  a  nation  §  56.    Otner 
to  publish  the  declaration  of  war  for  the  instruction  and  direc- reasons  for 
tion  of  her  own  subjects,  in  order  to  fix  the  date  of  the  rights  *eoj ^ssl" 
which  belong  to  them  from  the  moment  of  this  declaration,  pubiica- 
and  in  relation  to  certain  effects  which  the  voluntary  law  of  tion.(i43) 
nations  attributes  to  a  war  in  form.     Without  such  a  public 
declaration  of  war,  it  would,  in  a  treaty  of  peace,  be  too  diffi- 
cult to  determine  those  acts  which  are  to  be  considered  as  the 
effects  of  war,  and  those  that  each  nation  may  set  down  as  in- 
juries of  which  she  means  to  demand  reparation.     In  the  last 
treaty  of  Aix-la-Chapelle,  between  France  and  Spain  on  the 
one  side,  and  England  on  the  other,  it  was  agreed  that  all  the 
prizes  taken  before  the  declaration  of  war  should  be  restored. 

He  who  is  attacked  and  only  wages  defensive  war,  needs  ?  57.  D?- 
not  to  make  any  hostile  declaration, — the  state  of  warfare  be-  fensi.vo  ™v- 
ing  sufficiently  ascertained  by  the  enemy's  declaration,  (HrJJStrSbl 

(143)  But  there  seems  to  be  no  ab-  was  declared  by  Act  of  Congress,  June 

eolute  necessity  for  a  formal  declaration  18th,  1812.     (Laws  U.  S.  1812,  p.  227.) 

of  war  to  render  it  legal.     See  obser-  But  war  had  existed,  in  fact,  from  March 

rations  of  Sir  William  Scott,  in  Nayede,  4th    until    May    13th,    1846,    between 

4    Rob.  Rep.  252 ;   Chitty's   Law   Nat.  Mexico  and  the  United  States,  without 

29,  3.    But,  in  England,  the  king  must  any  formal   declaration.     The   act    of 

have   assented  to   a  war  to    render  it  Congress  of  13th  May,  1846,   declares 

strictly    legal.      Brooke's     Abrid.    tit  that,  "by  the  act  of  the  Republic  of 

"Denizen,"  pi.  26;  The  Hoop,  1  Rob.  Mexico,"  war  existed  between  the  coun- 

Rep.  196.— C.     { The  late  war  between  tries.     (Laws  U.  States,  1846,  p.  14.)  { 
the  United  States  and   Great  Britain 

419 


•war. 


317  OF  THE   DECLARATION   OF  WAR, 

BOOK  in.    open  hostilities.     In  modern  times,  however,  the  sovereign 
CHAP.  IY.  wfrQ  js  attacked,  seldom  omits  to  declare  war  in  his  turn, 
whether  from  an  idea  of  dignity,  or  for  the  direction  of  his 
subjects. 

§  58.  When     If  the  nation  on  whom  we  have  determined  to  make  war 
it  may  be     wifl  not  admit  any  minister  or  herald  to  declare  it, — whatever 
omitted  m    ^e  custom  may  otherwise  be,  we  may  content  ourselves  with 
publishing  the  declaration  of  hostilities  within  our  own  terri- 
tories, or  on  the  frontier ;  and  if  the  declaration  does  not 
come  to  the  knowledge  of  that  nation  before  hostilities  are 
commenced,  she  can  only  blame  herself.     The  Turks  imprison 
and  maltreat  even  the   ambassadors  of  those   powers  with 
whom  they  are  determined  to  come  to  a  rupture :  it  would  be 
a  perilous  undertaking  for  a  herald  to  go  and  declare  war 
against  them  in  their  own  country.     Their  savage  disposition, 
therefore,  supersedes  the  necessity  of  sending  one. 
?59.  itisnot     But  no  person  being  exempted  from  his  duty  for  the  sole 
to  be  omit-  reason  that  another  has  been  wanting  in  his,  we  are  not  to 
ted  by  way  om^  declaring  war  against  a  nation,  previous  to  a  commence- 
tfon6talia     ment  °f  hostilities,  because  that  nation  has,  on  a  former  oc- 
casion, attacked  us  without  any  declaration.     That  nation,  in 
so  doing,  has  violated  the  law  of  nature  (§  51) ;  and  her  fault 
does  not  authorize  us  to  commit  a  similar  one. 

§  eo.  Time  The  law  of  nations  does  not  impose  the  obligation  of  declar- 
of  the  de-  jng  war?  with  a  view  to  give  the  enemy  time  to  prepare  for 
claration.  an  unjug£  defence.  The  declaration,  therefore,  need  not  be 
made  till  the  army  has  reached  the  frontiers ;  it  is  even  law- 
ful to  delay  it  till  we  have  entered  the  enemy's  territories, 
and  there  possessed  ourselves  of  an  advantageous  post :  it  must, 
however,  necessarily  precede  the  commission  of  any  act  of 
hostility.  For  thus  we  provide  for  our  own  safety,  and 
equally  attain  the  object  of  a  declaration  of  war,  which  is,  to 
give  an  unjust  adversary  the  opportunity  of  seriously  consi- 
dering his  past  conduct,  and  avoiding  the  horrors  of  war,  by 
doing  justice.  Such  was  the  conduct  of  that  generous  prince, 
Henry  the  Fourth,  towards  Charles  Emanuel  duke  of  Savoy ; 
who  had  wearied  his  patience  by  vain  and  fraudulent  nego- 
tiations.* 

§  61.  Duty  If  he,  who  enters  a  country  with  an  army  kept  under  strict 
of  the  inha-  discipline,  declares  to  the  inhabitants  that  he  does  not  come 
as  an  enemy,  that  he  will  commit  no  violence,  and  will  ac- 
quaint the  sovereign  with  the  cause  of  his  coming, — the  in- 
tering  a  habitants  are  not  to  attack  him ;  and  should  they  dare  to  at- 
country  be-  tempt  it,  he  has  a  right  to  chastise  them.  But  they  are  not 
to  admit  him  into  any  strong-holds,  nor  can  he  demand  ad- 
mission. It  is  not  the  business  of  subjects  to  commence  hos- 
tilities without  orders  from  their  sovereign :  but  if  they  are 
brave  and  loyal,  they  will,  in  the  mean  time,  seize  on  all  the 


*  See  Sally's  Memoirs. 
420 


AND    OF  WAR   IN   DUE   FORM.  318 

advantageous  posts,  and  defend  themselves  against  any  at-    BOOK  m. 
tempt  made  to  dislodge  them.  CHAP'.— 

After  a  declaration  of  war  on  the  part  of  the  sovereign  who  g  62.  Com- 
has  thus  invaded  the  country,  if  equitable  conditions  are  not  mencement 
offered  him  without  delay,  he  may  commence  his  operations ; of hostmties- 
for,  I  repeat  it,  he  is  under  no  obligation  to  suffer  himself  to 
be  amused.  But,  at  the  same  time,  we  are  never  to  lose 
sight  of  the  principles  before  laid  down  (§§  26  and  51)  concern- 
ing the  only  legitimate  causes  of  war.  To  march  an  army 
into  a  neighbouring  country  by  which  we  are  not  threatened, 
and  without  having  endeavoured  to  obtain,  by  reason  and  jus- 
tice, an  equitable  reparation  for  the  wrongs  of  which  we  com- 
plain, would  be  introducing  a  mode  pregnant  with  evils  to 
mankind,  and  sapping  the  foundations  of  the  safety  and  tran- 
quillity of  states.  If  this  mode  of  proceeding  be  not  exploded 
and  proscribed  by  the  public  indignation  and  the  concurrence 
of  every  civilized  people,  it  will  become  necessary  to  continue 
always  in  a  military  posture,  and  to  keep  ourselves  constantly 
on  our  guard,  no  less  in  times  of  profound  peace,  than  during 
the  existence  of  declared  and  open  war. 

The  sovereign  declaring  war  can  neither  detain  the  persons  \  63.    Con- 
nor the  property  of  those  subjects  of  the  enemy  who  are duct  to  be 
within  his  dominions  at  the  time  of  the  declaration.     They  ^7^*°' 
came  into  his  country  under  the  public  faith.     By  permitting  subjects  of 
them  to  enter  and  reside  in  his  territories,  he  tacitly  promised  an  enemy, 
them  full  liberty  and  security  for  their  return.     He  is  there- who  are  in 
fore  bound  to  allow  them  a  reasonable  time  for  withdrawing  tl^OI^y 
with  their  effects ;  and,  if  they  stay  beyond  the  term  prescribed,  *f  thee  ^ 
he  has  a  right  to  treat  them  as  enemies, — as  unarmed  enemies,  ciaration  of 
however.     But,  if  they  are  detained  by  an  insurmountable  war- (144) 
impediment,  as  by  sickness,  he  must  necessarily,  and  for  the 
same  reasons,  grant  them  a  sufficient  extension  of  the  time. 
At  present,  so  far  from  being  wanting  in  this  duty,  sovereigns 
carry  their  attention  to  humanity  still  farther,  so  that  foreign- 
ers, who  are  subjects  of  the  state  against  which  war  is  de- 
clared, are  very  frequently  allowed  full  time  for  the  settlement 
of  their  affairs.     This  is  observed  in  a  particular  manner  with 
regard  to  merchants ;  and  the  case  is  moreover  carefully  pro- 
vided for  in  commercial  treaties.     The  king  of  England  has 
done  more  than  this.     In  his  last  declaration  of  war  against 
France,  he  ordained  that  all  French  subjects  who  were  in  his 
dominions  should  be  at  liberty  to  remain,  and  be  perfectly 
secure  in  their  persons  and  effects,  "provided  they  demeaned 
themselves  properly." 

We  have  said  (§  56),  that  a  sovereign  is  to  make  the  de-  ?  64.  Pub- 
claration  of  war  public  within  his  dominions,  for  the  informa-  licat^°anr  °afnd 
tion  and  direction  of  his  subjects.  He  is  also  to  make  known 
his  declaration  of  war  to  the  neutral  powers,  in  order  to  ac- 

(144)  See  in  general  1  Chitty's  Com.  L.  414.— C. 

2L  421 


318  OF   THE   DECLARATION   OF  WAR, 

BOOK  m.  quaint  them  with  the  justificatory  reasons  which  authorize 
C1IAI>'  IV'  it, — the  cause  which  obliges  him  to  take  up  arms, — and  to 
notify  to  them  that  such  or  such  a  nation  is  his  enemy,  that 
they  may  conduct  themselves  accordingly.  We  shall  even  see 
[  319  ]  that  this  is  necessary  in  order  to  obviate  all  difficulty,  when 
we  come  to  treat  of  the  right  to  seize  certain  things  which 
neutral  persons  are  carrying  -,to  the  enemy,  and  of  what  is 
termed  contraband,  in  time  of  war.  This  publication  of  the 
war  may  be  called  declaration,  and  that  which  is  notified  di- 
rectly to  the  enemy,  denunciation ;  and,  indeed,  the  Latin 
term  is  denunciatio  belli. 

War  is  at  present  published  and  declared  by  manifestoes. 
These  pieces  never  fail  to  contain  the  justificatory  reasons, 
good  or  bad,  on  which  the  party  grounds  his  right  to  take  up 
arms.  The  least  scrupulous  sovereign  would  wish  to  be  thought 
just,  equitable,  and  a  lover  of  peace :  he  is  sensible  that  a 
contrary  reputation  might  be  detrimental  to  him.  The  mani- 
festo implying  a  declaration  of  war,  or  the  declaration  itself, 
printed,  published,  and  circulated  throughout  the  whole  state, 
contains  also  the  sovereign's  general  orders  to  his  subjects,  re- 
lative to  their  conduct  in  the  war.* 

g  65.  Deco-     In  so  civilized  an  age,  it  may  be  unnecessary  to  observe, 
mm  and      that,  in  those  pieces  which  are  published  on  the  subject  of  war, 
tTbiTob-011  ^  *8  Pr°Per  t°  abstain  from  every  opprobrious  expression  in- 
served  in     dicative  of  hatred,  animosity,  and  rage,  and  only  calculated  to 
the  mani-     excite  similar  sentiments  in  the  bosom  of  the  enemy.    A  prince 
festoes.        ought  to  preserve  the  most  dignified  decorum,  both  in  his 
words  and  in  his  writings.    He  ought  to  respect  himself  in  the 
person  of  his  equals  :  and,  though  it  is  his  misfortune  to  be  at 
variance  with  a  nation,  shall  he  inflame  the  quarrel  by  offen- 
sive expressions,  and  thus  deprive  himself  even  of  the  hopes 
of  a  sincere  reconciliation  ?     Homer's  heroes  call  each  other 
"  dog"  and  "  drunkard:"  but  this  was  perfectly  in  character, 
since,  in  their  enmity,  they  knew  no  bounds.     Frederic  Bar- 
barossa,  and  other  emperors,  and  the  popes  their  enemies, 
treated  each  other  with  as  little  delicacy.     Let  us  congratu- 
late our  age  on  the  superior  gentleness  of  its  manners,  and 
not  give  the  name  of  unmeaning  politeness  to  those  attentions 
which  are  productive  of  real  and  substantial  effects. 
§  66.   What     Those  formalities,  of  which  the  necessity  is  deducible  from 
is  a  lawful    the  principles  and  the  very  nature  of  war,  are  the  charac- 
teristics  of  a  lawful  war  in  due  form  (justum  bellum.)    Grotius 
says,f  that,  according  to  the  law  of  nations,  two  things  are 
requisite  to  constitute  a  solemn  or  formal  war — first,  that  it  be 

*  It  is  remarked  as  a  very  singular  themselves   properly," — and,    moreover, 

circumstance,    that     Charles    the    Se-  his  protection  and  favour  to  such  of  them 

cond,  king  of  Great  Britain,  in  his  de-  as  might  choose  to  'emigrate  to  his  do- 

claration  of  war  against  France,  dated  minions. 

February  9,  1668,  promised  security  to         f  De  Jure  Belli  et  Pacis,  lib.  i.  cap. 

French   subjects  who   should  "  demean  iii.  Z  4. 
422 


AND   OF   WAR   IN   DUE   FORM.  319 

on  both  sides,  made  by  tbe  sovereign  authority, — secondly,    BOOK  m. 
that  it  be  accompanied  by  certain  formalities.     These  formali-   CHAP-  **•  , 
ties  consist  in  the  demand  of  a  just  satisfaction  (rerum  repe- 
titio],  and  in  the  declaration  of  war,  at  least  on  the  part  of 
him  who  attacks ; — for  defensive  war  requires  no  declaration 
(§  57),  nor  even,  on  urgent  occasions,  an  express  order  from 
the  sovereign.     In  effect,  these  two  conditions  are  necessarily  [  320  ] 
required  in  every  war  which  shall,  according  to  the  law  of 
nations,  be  a  legitimate  one,  that  is  to  say,  such  a  war  as 
nations  have  a  right  to  wage.     The  right  of  making  war  be- 
longs only  to  the  sovereign  (§  4) ;  and  it  is  only  after  satis- 
faction has  been  refused  to  him  (§  37),  and  even  after  he  has 
made  a  declaration  of  war  (§  51),  that  he  has  a  right  to  take 
up  arms.  (145) 

A  war  in  due  form  is  also  called  a  regular  war,  because  cer-  What  a  re- 
tain rules,  either  prescribed  by  the  law  of  nature,  or  adopted  S"18*  war> 
by  custom,  are  observed  in  it.  noticed  in 

Legitimate  and  formal  warfare  must  be  carefully  distin- courts  Of 
guished  from  those  illegitimate  and  informal  wars,  or  rather  justice,  Ac, 
predatory  expeditions,  undertaken  either  without  lawful  au-  (146-) 
thority  or  without  apparent  cause,  as  likewise  without  the  J^Jj^"  ** 
usual  formalities,  and  solely  with  a  view  to  plunder.    Grotius  guished 
relates  several  instances  of  the  latter.*     Such  were  the  enter- from  in- 
prises  of  the  grandes  compagnies  which  had  assembled  in  formal  and 
France  during  the  wars  with  the  English, — armies  of  banditti,  w^awful 
who  ranged  about  Europe,  purely  for  spoil  and  plunder :  such 
were  the  cruises  of  the  buccaneers,  without  commission,  and 
in  time  of  peace ;  and  such  in  general  are  the  depredations  of 
pirates.     To  the  same  class  belong  almost  all  the  expeditions 
of  the  Barbary  corsairs :  though  authorized  by  a  sovereign, 

(145)  Ante,  the  notes  to  the  same  sec-    62 ;  Blackburne  v.  Thompson,  15  East, 
tions. — C.  90,  S.  P.)  observed,  that,  in  order  to  as- 

(146)  It  has  been  laid   down,   that  certain  whether  or  not  a  war  or  state 
whenever  the  king's  courts  are  open  in  of  amity  or  neutrality  subsists,  it  always 
a  given  country,  it  is  time  of  peace  in  belongs  to  the  Government  of  the  coun- 
judgment  of  law ;  but,  when  by  hostile  try  to  determine  in  what  relation  any 
measures  such  courts  are  shut  up  or  in-  other   country  stands   towards  it ;  and 
terrupted,  then  it  is  said  to  be  time  of  that  is  a  point  upon  which  courts  of  jus- 
war.  Earl  Lancaster's  case,  Bale's  Pleas  tice  cannot  decide ;  (f.  e.  without  evi- 
Crown,  Part  L  c.  26,  p.  344 ;  Co.  Litt.  dence  aliunde  as  to  the  declarations  or 
249,  b.  cited,  and  other  points  as  to  what  resolutions   of   Government;)  and    the 
is   war ;     Elphinstone    v.   Bedreechund,  most  potent  evidence  upon  such  a  sub- 
Knapp's   Rep.   316.      But    at  present,  ject  is  the  declaration  of  the  state.  And 
when   in   courts  of  justice,  whether  of  if  the  state  recognises  any  place  as  be- 
Common   Law,   Equity,   Admiralty,  or  ing  or  as  not  being  in  the  relation  of 
Prize    Court,   it  becomes  necessary  to  hostility  to  this  country,  that  is  obliga- 
ascertain  what  is,  or  not,  evidence  of  a  tory  on  courts  of  justice.     Per  Lord  El- 
war,  or  a  peace,  or  neutrality,  the  same  lenborough,  3  Camp.  66  ;  and  see  other 
is   now  usually  determined  by  distinct  instances   and    authorities,   1    Chitty's 
acts   of  the  state.     Upon  this  question,  Commercial  Law,  393-4. — C.  { See,  also, 
the  following  cases  are  material : — Sir  The  U.  States  v.  Palmer,  3  Wheat  Rep. 

Wm.  Grant  (in  case  of  Pelham  Burke,     634,  635.} 

1  Edward's  Rep.  Appendix  D ;  3  Camp.        *  Lib.  iii.  cap.  iv. 

423 


320  OF  THE   DECLARATION   OF   WAR,  ETC. 

BOOK  m.    they  are  undertaken  without  any  apparent  cause,  and  from  no 
CHAP.  IY.  Qtjjgj.  motive  than  the  lust  of  plunder.     These  two  species  of 
war,  I  say, — the  lawful  and  the  illegitimate, — are  to  be  care- 
fully distinguished,  as  the  effects  and  the  rights  arising  from 
each  are  very  different. 

§  68.  In  order  fully  to  conceive  the  grounds  of  this  distinction, 

Grounds  of  ft  [s  necessary  to  recollect  the  nature  and  object  of  lawful 
lc~  war.  It  is  only  as  the  last  remedy  against  obstinate  injustice 
that  the  law  of  nature  allows  of  war.  Hence  arise  the  rights 
which  it  gives,  as  we  shall  explain  in  the  sequel :  hence,  like- 
wise, the  rules  to  be  observed  in  it.  Since  it  is  equally  possi- 
ble that  either  of  the  parties  may  have  right  on  his  side, — 
and  since,  in  consequence  of  the  independence  of  nations,  that 
point  is  not  to  be  decided  by  others  (§  40), — the  condition  of 
the  two  enemies  is  the  same,  while  the  war  lasts.  Thus,  when 
a  nation,  or  a  sovereign,  has  declared  war  against  another 
sovereign  on  account  of  a  difference  arisen  between  them,  their 
war  is  what  among  nations  is  called  a  lawful  and  formal  war ; 
and  its  effects  are,  by  the  voluntary  law  of  nations,  the  same 
on  both  sides,  independently  of  the  justice  of  the  cause,  as  we 
shall  more  fully  show  in  the  sequel.*  Nothing  of  this  kind  is 
the  case  in  an  informal  and  illegitimate  war,  which  is  more 
properly  called  depredation.  Undertaken  without  any  right, 
without  even  an  apparent  cause,  it  can  be  productive  of  no 
lawful  effect,  nor  give  any  right  to  the  author  of  it.  A  nation 
attacked  by  such  sort  of  enemies  is  not  under  any  obligation 
to  observe  towards  them  the  rules  prescribed  in  formal  war- 
[  321  ]  fare.  She  may  treat  them  as  robbers.  (1)  The  inhabitants  of 
Geneva,  after  defeating  the  famous  attempt  to  take  their  city 
by  escaladef,  caused  all  the  prisoners  whom  they  took  from 
the  Savoyards  on  that  occasion  to  be  hanged  up  as  robbers, 
who  had  come  to  attack  them  without  cause  and  without  a  de- 
claration of  war.  Nor  were  the  Genevese  censured  for  this 
proceeding,  which  would  have  been  detested  in  a  formal  war. 

*  See  chap.  xii.  of  this  book.  are  hastes  humani  generis.     The  3fari- 

{(1)  Pirates  may  be  lawfully.^aptured     anno  Flora,  11  Wheat.  Rep.  l.{ 

by  the  public  or  private  armed  ships  of         -J-  In  the  year  1602. 

any  nation,  in  peace  or  war;  for  they 
424 


OF  THE   ENEMY,  ETC. 


321 


CHAP.  V. 

OF  THE   ENEMY,  AND   OF   THINGS   BELONGING   TO   THE   ENEMY. 

THE  enemy  is  he  with  whom  a  nation  is  at  open  war.    The  §  69.   wiio 
Latins  had  a  particular  term  (Hostis)  to  denote  a  public  enemy, is  an  enif- 
and  distinguished  him  from  a  private  enemy  (Inimicus).     Our  my' ( 
language  affords  but  one  word  for  these  two  classes  of  per- 
sons, who  ought,  nevertheless,  to  be  carefully  distinguished. 

(147)  As  to  the  definition  of  an  alien  East,  489 ;    Willan  v.  Patteson,  7  Taunt 

enemy,  and  of  what  is  less  than  a  gene-  439 ;  Grotius,  B.  3,  c.  4,  s.  8  ;  Binker- 

ral  enemy,  and  merely  an  hostile  cha-  shock,  B.  1,  c.  3 ;  Chitty's  L.  Nat  1  to 

racier,   or   hostile    residence,  or   hostile  27.      The  exceptions  to  that  rule   are 

trade,  and  of  the  modern  decisions  on  the  sometimes   by  express   treaty ;    (see   2 

diversities ;  see  Boedes  Lust,  5  Rob.  Rep.  Ward's  Law  of  Nat.  358 ;)  and  in  Great 

233 ;  1  Chitty's  Commercial  Law,   394  Britain  have  been  permitted  by  tempo- 

to  412,  Id.  Index,  tit  Hostile  Character,  rary  acts,  or  by  orders  in  council,  author- 

and  Chitty's  L.  Nat  30  to  64.  izing  the  privy  council  to  grant  licenses. 

In  some  cases,  the  generous  and  be-  (See  Phillimore  on  Licenses,  5.)     The 

neficial  conduct  of  an  enemy  will  obli-  case  of  prisoners  at  war  contracting  for 

terate  his  hostile  character,  and  preclude  necessaries,    constitutes    an   exception, 

his  property  from  becoming  subject  to  Antoine  \.  Morshead,    6   Taunt   237 — 

seizure,  as    was  beautifully  illustrated  447 ;  1  Marsh.  Rep.  558 ;  Danby  v.  Mors- 

by  Sir  W.  Scott's  decision  in  Jonge  J.  head,  6  Taunt  332 ;  Vattel,  post,  g  264, 

Baumann,    where   an    English   frigate,  p.  414. 

with  her  officers  and  crew,  having  been        Questions    sometimes    arise,  whether 

saved    from    shipwreck   by  a    foreign  a  commercial  transaction  between  par- 

{ neutral }   vessel  and  crew,  the  former  ties    in   different  countries,  afterwards 

ungratefully  carried  the  latter  into  port  at  war  with  each  other,  as  for  instance, 

as    prize;    {asserting   she    had  French  Great  Britain   and    America,   pending 

property  on  board ; }  but  a  restoration  war,  or  on    the   eve   of  war,  between 

was  decreed,  on  the  ground  that  such  a  these  countries,  was  pactum  illicitum, 

service  had  blotted  out  and  obliterated  If  it  be  pending  war,  or  in  contempla- 

the  character  of  an  enemy,  { if  it  had  tion  of  it,  and  against  its  spirit,  and  not 

ever  existed,  which  was  not  the  fact. }  expressly  licensed  by  the  Government, 

1  Rob.  Rep.  245 ;  and  see  gg   178,  post,  then  it  is  illegal.     See  the  rule  in  the 

pp.  374-5.  case    of  McGavon  v.    Stewart,   in   the 

Of  the  illegality  of  commerce  between  House  of  Lords,  (14  July,  1830,)  4  Wils. 
subjects  of  belligerent  states. — Vattel  is  &  Shaw,  193-4.  An  alien  carrying  on 
very  succinct  upon  this,  in  modern  trade  in  an  enemy's  country,  though 
times,  the  most  important  consequence  resident  there  also  in  the  character  of 
of  war.  In  general  it  is  illegal  for  the  consul  of  a  neutral  state,  has  been  con- 
private  subjects  of  belligerents  to  have  sidered  an  alien  enemy,  and  as  such 
any  commercial  transactions  or  deal-  disabled  to  sue,  and  liable  to  confisca- 
ings  between  each  other,  in  expecta-  tion.  Albrebtcht  v.  Sussmann,  2  Ves.  it 
tion  of  or  pending  the  war;  for  other-  Beames,  323. 

wise  assistance  might  be  rendered  to  But  these  rules  prohibiting  com- 
the  enemy,  enabling  them  to  protract  merce  between  the  subjects  of  bellige- 
the  war,  and,  under  colour  of  com-  rent  states,  do  not  affect  neutrals ;  (ex- 
merce,  secret  communications  might  cepting,  indeed,  the  liability  to  visitation 
be  made  injurious  to  the  states  of  each  and  search;)  and,  therefore,  actions 
country ;  and  therefore  there  is  no  such  may  be  sustained  in  England  by  a  neu- 
thing  as  a  war  for  arms,  and  a  peace  tral  on  a  promissory  note  given  to  him 
for  commerce.  The  rule  and  the  prin-  by  a  British  subject  in  an  enemy's 
ciple  upon  which  it  is  founded,  are  fully  country,  for  goods  sold  by  the  neutral 
commented  upon  in  the  case  of  The  to  the  latter  there.  Cowp.  363 ;  Hour- 
Hoop,  1  Rob.  Rep.  196;  Potts  v.  Bell,  8  ret  v.  Morris,  3  Camp.  303.  And  it  has 
Term  Rep.  548;  Mennett  v.  Bonham,  15  even  been  held,  that  an  Englishman 
54  2  L  2  435 


321  OF  THE  ENEMY,   AND   OF  THINGS 

BOOK  in.    A  private  enemy  is  one  who  seeks  to  hurt  us,  and  takes  plea- 

_CHAP.  Y.    gure  jn  ^e  ey-j  tkat  kefals  us      A  public  enemy  forms  claims 

against  us,  or  rejects  ours,  and  maintains  his  real  or  pretended 

rights  by  force  of  arms.     The  former  is  never  innocent ;  he 

fosters  rancour  and  hatred  in  his  heart.     It  is  possible  that 

the  public  enemy  may  be  free  from  such  odious  sentiments, 

that  he  does  not  wish  us  ill,1  and  only  seeks  to  maintain  his 

rights.     This  observation  is  necessary  in  order  to  regulate  the 

dispositions  of  our  heart  towards  a  public  enemy. 

§  70.    AH        When  the  sovereign  or  ruler  of   the  state  declares  war 

the  subjects  against  another  sovereign,  it  is  understood  that  the  whole  na- 

stote^aT0    ^on  declares  war  against  another  nation ;  for  the  sovereign 

war  are  ene-  represents  the  nation,  and  acts  in  the  name  of  the  whole  so- 

mies,  ciety  (Book  I.  §§  40,  41 ;)  and  it  is  only  in  a  body,  and  in  her 

national  character,  that  one  nation  has  to  do  with  another. 

Hence,  these  two  nations  are  enemies,  and  all  the  subjects  of 

the  one  are  enemies  to  all  the  subjects  of  the  other.     In  this 

particular,  custom  and  principle  are  in  accord. 

\  71.   and        Enemies  continue  such  wherever  they  happen  to  be.     The 
continue  to  place  of  abode  is  of  no  consequence  here.     It  is  the  political 
be  enemies   ^ies  wnicn  determine  the  character.     Whilst  a  man  continues 
p  aces'  a  citizen  of  his  own  country,  he  is  the  enemy  of  all  those  with 
whom  his  nation  is  at  war.     But  we  must  not  hence  conclude 
that  these  enemies  may  treat  each  other  as  such,  wherever 
they  happen  to  meet.     Every  one  being  master  in  his  respect- 
ive country,  a  neutral  prince  will  not  allow  them  to  use  any 
violence  in  his  territories. 

5  72.   Whe-      Since  women  and  children  are  subjects  of  the  state,  and 
ther  women  members  of  the  nation,  they  are  to  be  ranked  in  the  class  of 
and  children  enemies.     But  it  does  not  thence  follow  that  we  are  justifiable 
counted6  *"  *n  treating  them  like  men  who  bear  arms,  or  are  capable  of 
enemies.      bearing  them.     It  will  appear  in  the  sequel,  that  we  have  not 
[  322  ]  the  same  rights  against  all  classes  of  enemies. 
§  73.  Things     When  once  we  have  precisely  determined  who  our  enemies 
belonging  to  are)  j^  js  eagy  ^o  know  what  are  the  things  belonging  to  the 
iemy    enemy  (res  hostiles).     We  have  shown  that  not  only  the  sove- 
reign with  whom  we  are  at  war  is  an  enemy,  but  also  his  whole 
nation,  even  the  very  women  and  children.     Every  thing, 
therefore,  which  belongs  to  that  nation, — to  the  state,  to  the 
sovereign,  to  the  subjects,  of  whatever  age  or  sex, — every 
thing  of  that  kind,  I  say,  falls  under  the  description  of  things 
belonging  to  the  enemy. 

domiciled  in   a  foreign  state  fn  amity  commerce  in  a  hostile  country,  is  to  be 

with   this   country  may  lawfully   exer-  considered  as  impressed  with  a  hostile 

cise  the  privileges  of  a  subject  of  the  character,  with  reference  at  least  to  so 

place  where  he  is  resident,  to  trade  with  much  of  his  commerce  as  may  be  con- 

a  nation  in  hostility  with  England,  1  nected   with   that    establishment;    and 

Maule  &  Selwyn,  726,  ted  quaere.     { See  this,  whether  he   maintains  that  esta- 

Livingtton  v.  The  Maryland  Int.  Co.  7  blishment  as  a  partner,  or  as  a  sole  trade. 

Cranch,  506.}     But,  in  general  he  who  The  Citto,  3  Rob.  38;  The  Portland,  Id. 

maintains  an  establishment  or  house  of  41  to  44. — C. 
426 


OF  THE   ENEMY,   ETC.  322 

And,  with  respect  to  things,  the  case  is  the  same  as  with    BOOK  m. 
respect  to  persons : — things  belonging  to  the  enemy  continue    CHAP~  v* . 
such,  wherever  they  are.  (1)     But  we  are  not  hence  to  con-  §  74.   con- 
clude, any  more  than  in  the  case  of  persons  (§  71),  that  we tinue  sucn 
everywhere  possess  a  right  to  treat  those  things  as  things  be-  everywhere- 
longing  to  the  enemy. 

Since  it  is  not  the  place  where  a  thing  is,  which  determines 
the  nature  of  that  thing,  but  the  character  of  the  person  to 
whom  it  belongs, — things  belonging  to  neutral  persons,  which  §  75.   Neu- 
happen  to  be  in  an  enemy's  country,  or  on  board  an  enemy's tral  ^m.^f 
ships,  are  to  be  distinguished  from  those  which  belong  to  the  ^ntzmy 
enemy.     But  it  is  the  owner's  business  to  adduce  evident  proof 
that  they  are  his  property:  for,  in  default  of  such  proof,  a 
thing  is  naturally  presumed  to  belong  to  the  nation  in  whose 
possession  it  is  found.  (148) 

The   preceding   section  relates  to  movable  property:  but 
the  rule  is  different  with  respect  to  immovable  possessions, 
such  as  landed  estates.     Since  all  these  do  in  some  measure  §  76.  Lands 
belong  to  the  nation,  are  part  of  its  domain,  of  its  territory,  possessed  by 
and   under  its   government  (Book  I.  §§  204,  235,  Book  ii.  fnre^mrs,gn 
§  114) — and  since  the  owner  is  still  a  subject  of  the  country  country? 
as  possessor  of  a  landed  estate, — property  of  this  kind  does 
not  cease  to  be  enemy's  property  (res  hostiles),  though  pos- 
sessed by  a  neutral  foreigner.     Nevertheless,  war  being  now 
carried  on  with  so  much  moderation  and  indulgence,  protec- 
tions are  granted  for  houses  and  lands  possessed  by  foreigners 
in  an  enemy's  country.     For  the  same  reason,  he  who  declares 
war  does  not  confiscate  the  immovable  property  possessed  in 
his  country  by  his  enemy's  subjects.     By  permitting  them  to 
purchase  and  possess  such  property,  he  has  in  that  respect 
admitted  them  into  the  number  of  his  subjects.     But  the  in- 
come may  be  sequestrated,  in  order  to  prevent  its  being  re- 
mitted to  the  enemy's  country. 

Among  the  things  belonging  to  the  enemy,  are  likewise  in-  g  77.  Things 
corporeal  things, — all  his  rights,  claims,  and  debts,  excepting, due  to  the 
however,  those  kind  of  rights  granted  by  a  third  party,  and  in  ^™y  a^  & 
which  the  grantor  is  so  far  concerned,  that  it  is  not  a  matter 
of  indifference  to  him,  in  what  hands  they  are  vested.     Such,  [  323  ~[ 
for  instance,  are  the  rights  of  commerce.     But  as  debts  are 
not  of  this  number,  war  gives  us  the  same  rights  over  any  sums 
of  money  due  by  neutral  nations  to  our  enemy,  as  it  can  give 
over  his  other  property.  (149) 

{(1)  See  Johnson  et  al.  v.  Twenty-one  (149)  This  was    the   ancient  law  of 

Sales,    Ac.     Van  Ness,  Prize   Causes,  nations,   Alt.    Gen.  v.   Weedon,   Parker 

p.  7.}  Rep.  267,  though   certainly  denied  by 

(148)  As   to  protection   to  neutrals'  Rolle,  J.    At  all  events,  it  is  now  al- 

property  and  modern  decisions,  see   1  tered;    see    authorities,    ante,   284,    n. 

Chitty's    Commercial    Law,   385—440;  (134;)    1     Chitty's    Commercial    Law, 

Id.  Index,  tit.  Neutrals;  1  Chitty's  L.  423;  1    Chitty's  L.  Nat.  82  to  86.— C. 

Nat  34,  54,  110—113,  183;  Id.  Index,  {But  see  Fairfax  v.  Hunter,  5  Cranch, 

tit.  Neutrals.— C.  19.} 

427 


823  OF  THE  ENEMY'S  ALLIES,  ETC. 

BOOK  m.  When  Alexander,  by  conquest,  became  absolute  master  of 
CHAP'  Y'  Thebes,  he  remitted  to  the  Thcssalians  a  hundred  talents 
which  they  owed  to  the  Thebans.*  The  sovereign  has  natu- 
rally the  same  right  over  what  his  subjects  may  owe  to  ene- 
mies, he  may  therefore  confiscate  debts  of  this  nature,  if  the 
term  of  payment  happen  in  the  time  of  war ;  or  at  least  he 
may  prohibit  his  subjects  front  paying  while  the  war  continues. 
But,  at  present,  a  regard  to  the  advantage  and  safety  of  com- 
merce has  induced  all  the  sovereigns  of  Europe  to  act  with 
less  rigour  in  this  point.  (150)  And  as  the  custom  has  been 
generally  received,  he  who  should  act  contrary  to  it  would 
violate  the  public  faith ;  for  strangers  trusted  his  subjects  only 
from  a  firm  persuasion  that  the  general  custom  would  be  ob- 
served. The  state  does  not  so  much  as  touch  the  sums  which 
it  owes  to  the  enemy :  money  lent  to  the  public  is  everywhere 
exempt  from  confiscation  and  seizure  in  case  of  war. 


CHAP.  VI. 

CHAP,  vr.       OF   THE   ENEMY'S  ALLIES  —  OF  WARLIKE  ASSOCIATIONS  —  OF 
AUXILIARIES   AND    SUBSIDIES. 

g  78.   Trea-     WE  have  sufficiently  spoken  of  treaties  in  general,  and 

ties  relative  shall  here  touch  on  this  subject  only  in  its  particular  relations 

to  war.         J.Q  war>     Treaties  relating  to  war  are  of  several  kinds,  and 

vary  in  their  objects  and  clauses,  according  to  the  will  of  those 

who  make  them.     Besides  applying  to  them  all  that  we  have 

said  of  treaties  in  general  (Book  II.  Ch.  XII.  &c.),  they  may 

also  be  divided  into  treaties  real  and  personal,  equal  and  un- 

equal, &c.     But  they  have  also  their  specific  differences,  viz. 

those  which  relate  to  their  particular  object,  war. 

§  79.  Defen-     Under  this  relation,  alliances  made  for  warlike  purposes  are 

«ive  and  of-  divided  in  general  into  defensive  and  offensive  alliances.     In 

fensive  aih-  ^  former,  the  nation  engages  only  to  defend  her  ally  in  case 

he  be  attacked  :  in  the  latter,  she  unites  with  him  for  the  pur- 

pose of  making  an  attack,  —  of  jointly  waging  war  against 

another  nation.     Some  alliances  are  both  offensive  and  de- 

fensive ;  and  there  seldom  is  an  offensive  alliance  which  is  not 

also  a  defensive  one.     But-  it  is  very  usual  for  alliances  to  be 

I    324  ]  purely  defensive  :  and  these  are  in  general  the  most  natural 

and  lawful.     It  would  be  a  tedious  and  even  a  useless  task  to 

enumerate  in  detail  all  the  varieties  incident  to  such  alliances. 


428 


*  Grotius,  de  Jure  Belli  &  Pacis,  lib.  iii.  cap.  viii.  \  4. 
(150)  See  ivpra,  n.  (149). 


OF  THE  ENEMY'S  ALLIES,  ETC.  324 

Some  are  made,  without  restriction,  against  all  opponents :  in    BOOK  m. 
others,  certain  states  are  excepted :  others  again  are  formed  CHAP-  TI-  , 
against  such  or  such  a  nation  expressly  mentioned  by  name. 

But  a  difference  of  great  importance  to  be  observed,  espe-  §  so.    Dif- 
cially  in  defensive  alliances,  is  that  between  an  intimate  and  ference  be- 
complete  alliance,  in  which  we  agree  to  a  union  of  interests, —  J^  associa- 
and  another,  in  which  we  only  promise  a  stated  succour.  The  tions  and 
alliance  in  which  we  agree  to  a  union  of  interests  is  a  warlike  auxiliary 
association :  each  of  the  parties  acts  with  his  whole  force ;  all  treaties, 
the  allies  become  principals  in  the  war ;  they  have  the  same 
friends  and  the  same  enemies.    But  an  alliance  of  this  nature 
is  more  particularly  termed  a  warlike  association,  when  it  is 
offensive. 

When  a  sovereign,  without  directly  taking  part  in  the  war  g  si.  Auxi- 
made  by  another  sovereign,  only  sends  him  succours  of  troops  liair  troops, 
or  ships,  these  are  called  auxiliaries. 

The  auxiliary  troops  serve  the  prince  to  whom  they  are  sent, 
according  to  their  sovereign's  orders.  If  they  are  purely  and 
simply  sent  without  restriction,  they  are  to  serve  equally  on 
the  offensive  and  the  defensive ;  and  for  the  particulars  of  their 
operations,  they  are  to  obey  the  directions  of  the  prince  to 
whose  assistance  they  come.  Yet  this  prince  has  not  the  free 
and  entire  disposal  of  them,  as  of  his  own  subjects :  they  are 
granted  to  him  only  for  his  own  wars ;  and  he  has  no  right  to 
transfer  them,  as  auxiliaries,  to  a  third  power. 

Sometimes,  this  succour  from  a  potentate  who  does  not  di-  ?  82.  Subsi- 
rectly  take  part  in  the  war,  consists  in  money :  and  then  it  is  dies- 
called  a  subsidy.  This  term  is  now  often  taken  in  another 
sense,  and  signifies  a  sum  of  money  annually  paid  by  one 
sovereign  to  another,  in  return  for  a  body  of  troops  which  the 
latter  furnishes  to  the  other  to  carry  on  his  wars,  or  keeps  in 
readiness  for  his  service.  The  treaties  for  procuring  such  a 
resource  are.  called  subsidiary  treaties.  France  and  England 
have  at  present  such  treaties  existing  with  several  of  the 
northern  powers  and  princes  in  Germany,  and  continue  them 
even  in  times  of  peace. 

In  order,  now,  to  judge  of  the  morality  of  these  several  trea-  g  83.  When 
ties  or  alliances, — of  their  legitimacy  according  to  the  law  of  a  nation  ia 
nations,  we  must,  in  the  first  place,  lay  down  this  incontro-  J^0.^8^*0 
vertible  principle,  that  It  is  lawful  and  commendable  to  sue-  °^T 
cour  and  assist,  by  all  possible  means,  a  nation  engaged  in  a 
just  war ;  and  it  is  even  a  duty  incumbent  on  every  nation, 
to  give  such  assistance,  when  she  can  give  it  without  injury 
to  herself.     But  no  assistance  whatever  is  to  be  afforded  to 
him  who  is  engaged  in  an  unjust  war.     There  is  nothing  in 
this  which  is  not  demonstrated  by  what  we  have  said  of  the 
common  duties  of  nations  towards  each  other.  (Book  II.  Ch.  I.) 
To  support  the  cause  of  justice  when  we  are  able,  is  always 
commendable :  but,  in  assisting  the  unjust,  we  partake  of  his 
crime,  and  become,  like  him,  guilty  of  injustice. 


324  OF  THE  ENEMY'S  ALLIES,  ETC. 

BOOK  in.        If,  to  the  principle  we  have  now  laid  down,  you  add  the 

CHAP.  TI.  consideration  of  what  a  nation  owes  to  her  own  safety,  and 

g  84.  and  to  of  the  care  which  it  is  so  natural  and  so  fit  that  she  should 

make  alii-    take  to  put  herself  in  a  condition  to  resist  her  enemies,  you 

w^j68  f°r     w^  *^e  more  rea>dily  perceive  how  clear  a  right  a  nation  has 

T*325  ~\  *°  ma^e  warlike  alliances,  and  especially  defensive  alliances, 

whose  sole  tendency  is  to  maintain  all  parties  in  the  quiet 

and  secure  possession  of  their  property. 

But  great  circumspection  is  to  be  used  in  forming  such 
alliances.  Engagements  by  which  a  nation  may  be  drawn 
into  a  war  at  a  moment  when  she  least  expects  it,  ought  not 
to  be  contracted  without  very  important  reasons,  and  a  direct 
view  to  the  welfare  of  the  state.  We  here  speak  of  alliances 
made  in  time  of  peace,  and  by  way  of  precaution  against 
future  contingencies. 

§  85.  Alii-  If  there  be  question  of  contracting  an  alliance  with  a  na- 
ances  made  tion  already  engaged  in  a  war,  or  on  the  point  of  engaging 
tion'actaaii  *n  one'  *wo  things  are  to  be  considered :  1.  The  justice  of 
engaged  in7  that  nation's  quarrel.  2.  The  welfare  of  the  state.  If  the 
war.  war  which  a  prince  wages,  or  is  preparing  to  wage,  be  un- 

just, it  is  not  allowable  to  form  an  alliance  with  him ;  for 
injustice  is  not  to  be  supported.  If  he  is  justifiable  in 
taking  up  arms,  it  still  remains  to  be  considered  whether  the 
welfare  of  the  state  allows  or  requires  us  to  embark  in  his 
quarrel :  for  it  is  only  with  a  view  to  the  welfare  of  the 
state  that  the  sovereign  ought  to  use  his  authority :  to  that 
all  his  measures  should  tend,  and  especially  those  of  the 
most  important  nature.  What  other  consideration  can 
authorize  him  to  expose  his  people  to  the  calamities  of 
war? 

§  86.   Tacit  x  As  it  is  only  for  the  support  of  a  just  war  that  we  are  al- 

ciause  in      lowed  to  give  assistance  or  contract  alliances, — every  alliance, 

every  war-   every  warlike  association,  every  auxiliary  treaty,  contracted 

wee*  l'       ky  way  °f  anticipation  in  time  of  peace,  and  with  no  view  to 

any  particular  war,  necessarily  and  of  itself  includes  this 

tacit  clause — that  the  treaty  shall  not  be  obligatory  except 

in  case  of  a  just  war.     On  any  other  footing,  the  alliance 

could  not  be  validly  contracted.     (Book  II.  §§  161,  168.) 

But  care  must  be  taken  that  treaties  of  alliance  be  not 
thereby  reduced  to  empty  and  delusive  formalities.  The 
tacit  restriction  is  to  be  understood  only  of  a  war  which  is 
evidently  unjust ;  for  otherwise  a  pretence  for  eluding  treaties 
would  never  be  wanting.  Is  there  question  of  contracting 
an  alliance  with  a  power  actually  at  war  ?  It  behooves  you 
most  religiously  to  weigh  the  justice  of  his  cause :  the  judg- 
ment depends  solely  on  you,  since  you  owe  him  no  assistance 
any  further  than  as  his  quarrel  is  just,  and  your  own  circum- 
stances make  it  convenient  for  you  to  embark  in  it.  But 
when  once  engaged,  nothing  less  than  the  manifest  injustice 
of  his  cause  can  excuse  you  from  assisting  him.  In  a  doubt- 


OF  THE  ENEMY'S  ALLIES,  ETC.  325 

ful  case,  you  are  to  presume  that  your  ally  has  justice  on  his    BOOK  m. 
Bide  ;  that  being  his  concern.  CHAP'  VI> 

But  if  you  entertain  strong  doubts,  you  may  very  fairly 
and   coromendably   interpose   to    effect   an   accommodation. 
Thus  you  may  bring  the  justice  of  the  cause  to  the  test  of 
evidence,  by  discovering  which  of  the  contending  parties  re-  [  326  ] 
fuses  to  accede  to  equitable  conditions. 

As  every  alliance  implies  the  tacit  clause  above  mentioned,  g  87.  To  re- 
he  who  refuses  to  succour  his  ally  in  a  war  that  is  manifestly  f«se  suc- 
unjust  is  not  chargeable  with  a  breach  of  alliance.  ^-H,*™™ 

When  alliances  have  thus  been  contracted  beforehand,  the  ^^breach 
question  is,  to  determine,  in  the  course  of  events,  those  cases  Of  alliance, 
in  which  our  engagements  come  in  force,  and  we  are  bound 
to  act  in  consequence  of  the  alliance.     This  is  what  is  called  \  88.   What 
cams  fcederis,  or  case  of  the  alliance,  and  is  to  be  discovered  *^d^J™. 
in  the  concurrence  of  the  circumstances  for  which  the  treaty 
has  been  made,  whether  those  circumstances  have  been  ex- 
pressly specified  in  it,  or  tacitly  supposed.     Whatever  has 
been  promised  in  the  treaty  of  alliance  is  due  in  the  casus 
foederis,  and  not  otherwise. 

As  the  most  solemn  treaties  cannot  oblige  any  one  to  favour  \  89.   It 
an  unjust  quarrel  (§  86):  the  casus  foederis  never  takes  place  never  takes 
in  a  war  that  is  manifestly  unjust.  SrJTst  war 

In  a  defensive  alliance,  the  casus  foederis  does  not  exist  im-  UDJUS 
mediately  on  our  ally  being  attacked.     It  is  still  our  duty  to  %  90.    HOW 
examine  whether  he  has  not  given  his  enemy  just  cause  toitexis^ina 
make  war  against  him :  for  we  cannot  have  engaged  to  un-  j^ensi 
dertake  his  defence  with  the  view  of  enabling  him  to  insult 
others,  or  to  refuse  them  justice.     If  he  is  in  the  wrong,  we 
must  induce  him  to  offer  a  reasonable  satisfaction ;  and  if  his 
enemy  will  not  be  contented  with  it,  then,  and  not  till  then, 
the  obligation  of  defending  him  commences. 

But  if  the  defensive  alliance  contains  a  guarantee  of  all  I  91.  and  in 
the  territories  at  that  time  possessed  by  the  ally,  the  casus a  treaty  of 
foederis  immediately  takes  place  whenever  those  territories  S"*™111*6- 
are  invaded  or  threatened  with  an  invasion.     If  they  are 
attacked  for  a  just  cause,  we  must  prevail  on  our  ally  to  give 
satisfaction ;  but  we  may  on  good  grounds  oppose  his  being 
deprived  of  his  possessions,  as  it  is  generally  with  a  view  to 
our  own  security  that  we  undertake  to  guaranty  them.     On 
the  whole,  the  rules  of  interpretation,  which  we  have  given 
in  an  express  chapter,*  are  to  be  consulted,  in  order  to  de- 
termine, on  particular  occasions,  the  existence  of  the  casus 
foederis. 

If  the  state  that  has  promised  succours  finds  herself  un-  g  92.    The 
able  to  furnish  them,  her  inability  alone  is  sufficient  to  dis-  succour  is 
pense  with  the  obligation  ;  and  if  she  cannot  give .  her  as- not  due 
sistance  without   exposing  herself  to   evident  danger,  thfal 

*  Book  II.  chap.  xvii. 

431 


826  OF  THE  ENEMY'S  ALLIES,  ETC. 

BOOK  in.    circumstance  also  dispenses  with  it.     This  would  be  one  of 
thoge    cageg    jn  whick  a  treaty  becomes    pernicious    to   the 


furnish  it,     state?  an(j  therefore  not  obligatory  (Book  II.   §  160).     But 
pubiitTaflty we  ^ere  sPeak  °f  an  imminent  danger,  threatening  the  very 
would  be      existence  of  the  state.     The  case  of  such  a  danger  is  tacitly 
exposed.      and   necessarily  reserved   in   every  treaty.     As  to  remote 
dangers,   or   those    of   no    extraordinary  magnitude, — since 
[  327  ]  they  are  inseparable  from  every  military  alliance,  it  would 
be  absurd  to  pretend  that  they  should  create  an  exception ; 
and  the  sovereign  may  expose  the  nation  to  them  in  consider- 
ation of  the  advantages  which  she  reaps  from  the  alliance. 

In  virtue  of  these  principles,  we  are  absolved  from  the 
obligation  of  sending  assistance  to  an  ally  while  we  are 
ourselves  engaged  in  a  war  which  requires  our  whole 
strength.  If  we  are  able  to  oppose  our  own  enemies  and 
to  assist  our  ally  at  the  same  time,  no  reason  can  be  pleaded 
for  such  dispensation.  But,  in  such  cases,  it  rests  with  our- 
selves to  determine  what  our  circumstances  and  strength  will 
allow.  It  is  the  same  with  other  things  which  may  have 
been  promised,  as,  for  instance,  provisions.  There  is  no 
obligation  to  furnish  an  ally  Avith  them  when  we  want  them 
for  our  own  use. 

f  93.   Other     We  forbear  to  repeat  in  this  place  what  we  have  said  of 
cases.          various  other  cases,  in  discoursing  of  treaties  in  general,  as, 
for  example,  of  the  preference  due  to  the  more  ancient  ally 
(Book  II.  §  167),  and  to  a  protector  (ibid.  §  204),  of  the 
meaning  to  be  annexed  to  the  term  "allies,"  in  a  treaty  in 
which  they  are  reserved  (ibid.  §  309).     Let  us  only  add,  on 
this  last  question,  that,  in  a  warlike  alliance  made  against  all 
opponents,  the  allies  ezcepted,  this  exception  is  to  be  understood 
only  of  the  present  allies.     Otherwise,  it  would  afterwards  be 
easy  to  elude   the  former  treaty  by  new  alliances ;    and  it 
would  be  impossible  for  us  to  know  either  what  we  are  doing 
in  concluding  such  a  treaty,  or  what  we  gain  by  it. 
Two  of  the       A  case  which  we   have  not  spoken  of  is   this : — Three 
parties  in     powers  have  entered  into  a  treaty  of  defensive  alliance  :  two 
co^n  *  to6a  °^  tnem  (luarre^>  an(*  make  war  on  eacn  otner : — how  is  the 
rupture.  °  &  third  to  act  ?     The  treaty  does  not  bind  him  to  assist  either 
the  one  or  the  other ;  for  it  would  be  absurd  to  say  that  he 
has  promised  his  assistance  to  each  against  the  other,  or  to 
one  of  the  two  in  prejudice  of  the  other.     The  only  obliga- 
tion, therefore,  which  the  treaty  imposes  on  him,  is  to  en- 
deavour, by  the  interposition  of  his  good  offices,  to  effect  a 
reconciliation  between  his  allies ;  and  if  his  mediation  proves 
unsuccessful,  he  remains  at  liberty  to  assist  the  party  who 
appears  to  have  justice  on  his  side. 

g  94   Re-        To  refuse  an  ally  the  succours  due  to  him,  without  having 

fusai  of  the  any  just  cause  to  allege  for  such  refusal,  is  doing  him  an  in- 

™cc™rs.      jury,  since  it  is  a  violation  of  the  perfect  right  which  we  gave 

him  by  a  formal  engagement.     I  speak  of  evident  cases,  it 


OP   THE   ENEMY  S   ALLIES,    ETC.  6Z 

being  then  only  that  the  right  is  perfect ;  for,  in  those  of  a   BOOK  m. 
doubtful  nature,  it  rests  with  each  party  to  judge  what  he  is   CHAP'  "" 


able  to  do  (§  92) :  but  he  is  to  judge  maturely  and  impartially,  *™  of  *n 
and  to  act  with  candour.  And  as  it  is  an  obligation  naturally  a  iance" 
incumbent  on  us,  to  repair  any  damage  caused  by  our  fault, 
and  especially  by  our  injustice,  we  are  bound  to  indemnify 
an  ally  for  all  the  losses  he  may  have  sustained  in  consequence 
of  our  unjust  refusal.     How  much  circumspection,  therefore, 
is  to  be  used  in  forming  engagements,  which  we  cannot  re- 
fuse to  fulfil  without  material  injury  to  our  affairs  or  our  [  328  ] 
honour,  and  which,  on  the  other  hand,  if  complied  with,  may 
be  productive  of  the  most  serious  consequences. 

An  engagement,  which  may  draw  us  into  a  war,  is  of  great  g  95.  The 
moment :  in  it  the  very  existence  of  the  state  is  at  stake,  enemy's 
He  who  in  an  alliance  promises  a  subsidy  or  a  body  of  auxilia-  associates* 
ries,  sometimes  imagines  that  he  only  risks  a  sum  of  money 
or  a  certain  number  of  soldiers ;  whereas  he  often  exposes 
himself  to  war  and  all  its  calamities.  The  nation  against 
whom  he  furnishes  assistance  will  look  upon  him  as  her 
enemy ;  and  should  her  arms  prove  successful,  she  will  carry 
the  war  into  his  country.  But  it  remains  to  be  determined 
whether  she  can  do  this  with  justice,  and  on  what  occasions. 
Some  authors*  decide  in  general,  that  whoever  joins  our 
enemy,  or  assists  him  against  us  with  money,  troops,  or  in 
any  other  manner  whatever,  becomes  thereby  our  enemy,  and 
gives  us  a  right  to  make  war  against  him : — a  cruel  decision, 
and  highly  inimical  to  the  peace  of  nations !  It  cannot  be 
supported  by  principles ;  and  happily  the  practice  of  Europe 
stands  in  opposition  to  it. 

It  is  true,  indeed,  that  every  associate  of  my  enemy  is 
himself  my  enemy.  It  is  of  little  consequence  whether  any 
one  makes  war  on  me  directly,  and  in  his  own  name,  or 
under  the  auspices  of  another.  Whatever  rights  war  gives 
me  against  my  principal  enemy,  the  like  it  gives  me  against 
all  his  associates :  for  I  derive  those  rights  from  the  right  t© 
security, — from  the  care  of  my  own  defence ;  and  I  am 
equally  attacked  by  the  one  and  the  other  party.  But  the 
question  is,  to  know  whom  I  may  lawfully  account  my  ene- 
my's associate,  united  against  me  in  war. 

First,  in  that  class  I  shall  rank  all  those  who  ar&  really  g  96.  Those 
united  in  a  warlike  association  with  my  enemy,  and  who who  make  a 
make  a  common  cause  with  him,  though  it  is-  only  in  the common. 
name  of  that  principal  enemy  that  the  war  is  carried  on.  inTe^Imy 
There  is  no  need  of  proving  this.     In  the  ordinary  and  open  are  his  asso- 
warlike  associations,  the  war  is  carried  on  in  the  name  of  allciates> 
the  allies,  who  are  all  equally  enemies  (§  80). 

In  the  second  place,  I  account  as  associates  of  my  enemy,  f  97.   And" 
those  who  assist  him  in  his  war  without  being  obliged  to  it those  wh(v 

*  See  Wolf,  Jus  Gentium,  32  730  and  737. 
55  2  M  433 


328  OF  THE  ENEMY'S  ALLIES,  ETC. 

BOOK  in.    by  any  treaty.     Since  they  freely  and  voluntarily  declare 
CHAP.  YI.   against  nu>j  they,  of  their  own  accord,  choose  to  become  my 
assist  him,    enemies.     If  they  go  no  farther  than  furnishing  a  determined 
without  be-  succour,  allowing   some   troops  to  be  raised,  or  advancing 
togit°bllged  money> — and>  in  other  respects,  preserve  towards  me  the  ac- 
treaties;      customed   relations   of    friendship   and   neutrality, — I   may 
overlook  that  ground  of  complaint ;  but  still  I  have  a  right 
to  call  them  to  account  for  it.     This  prudent  caution  of  not 
always  coming  to  an  open  rupture  with  those  who  give  such 
assistance  to  our  enemy,  that  we  may  not  force  them  to  join 
him  with  all  their   strength, — this   forbearance,  I  say,  has 
gradually  introduced  the  custom  of  not  looking  on  such  as- 
sistance as  an  act  of  hostility,  especially  when  it  consists 
J_  329  ]  only  in  the  permission  to  enlist  volunteers.     How  often  have 
the  Switzers  granted  levies  to  France,  at  the  same  time  that 
they  refused  such   an   indulgence  to  the  house  of  Austria, 
though  both  powers  were  in  alliance  with  them  !     How  often 
have  they  allowed  one  prince  to  levy  troops  in  their  country, 
and  refused  the  same  permission  to  his  enemy,  when  they 
were  not  in  alliance  with  either !     They  granted  or  denied 
that  favour  according  as  they  judged  it  most  expedient  for 
themselves ;  and  no  power  has  ever  dared  to  attack  them  on 
that  account.     But  if  prudence  dissuades  us  from  making 
use  of  all  our  right,  it  does  not  thereby  destroy  that  right. 
A  cautious  nation  chooses  rather  to  overlook  certain  points, 
than  unnecessarily  to  increase  the  number  of  her  enemies. 
§  98.    Or         Thirdly,  those,  who,  being  united  with  my  enemy  by  an 
who  are  in    offensive  alliance,  actively  assist  him  in  the  war  which  he 
aTliance81™  Declares  aga"*st  me, — those,  I  say,  concur  in  the  injury  in- 
with^im.     tended  against  me.     They  show  themselves  my  enemies,  and 
I  have  a  right  to  treat  them  as  such.     Accordingly,  the 
Switzers,  whose  example  we  have  above  quoted,  seldom  grant 
troops  except  for  defensive  war.     To  those  in  the  service  of 
France,  it  has  ever  been  a  standing  order  from  their  sove- 
reigns, not  to  carry  arms  against  the  empire,  or  against  the 
states  of  the  house  of  Austria  in  Germany.     In  1644,  the 
captains  of  the  Neufchatel  regiment  of  Guy,  on  information 
that  they  were  destined  to  serve  under  Marshal  Turenne,  in 
Germany,  declared  that  they  would  rather  die  than  disobey 
their   sovereign   and  violate  the   alliances  of  the   Helvetic 
body.     Since  France  has  been  mistress  of  Alsace,  the  Swit- 
zers who  serve  in  her  armies  never  pass  the  Rhine  to  attack 
the  empire.     The  gallant  Daxelhoffer,  captain  of  a  Berne 
•company  in  the  French  service,  consisting  of  200  men,  and 
of  which  his  four  sons  formed  the  first  rank,  seeing  the  gene- 
ral would  oblige  him  to  pass  the  Rhine,  broke  his  espontoon, 
and  marched  back  with  his  company  to  Berne. 

g  98,  How  Even  a  defensive  alliance  made  expressly  against  me,  or 
a  defensive  j(Vhich  amounts  to  the  same  thing)  concluded  with  my  enemy 
alliance  as-  Curing  the  war,  or  on  the  certain  prospect  of  its  speedy  de 

434 


OF   THE   ENEMY  S  ALLIES,    ETC.  329 

claration,  is  an  act  of  association  against  me  ;  and  if  followed  .BOOK  m. 
by  effects,  I  may  look  on  the  party  who  has  contracted  it  as   CHAF-  YI- . 
my  enemy.     The  case  is  here  precisely  the  same  as  that  of  a  sociates 
nation  assisting  my  enemy  without  being  under  any  obliga- with  tho 
tion  to  do  so,  and  choosing  of  her  own  accord  to  become  my  encmy- 
enemy.     (See  §  97.) 

A  defensive  alliance,  though  of  a  general  nature,  and  made  1 100.  An- 
before  any  appearance  of  the  present  war,  produces  also  the  other  case- 
same  effect,  if  it  stipulates  the  assistance  of  the  whole 
strength  of  the  allies :  for  in  this  case  it  is  a  real  league,  or 
warlike  association ;  and,  besides,  it  were  absurd  that  I 
should  be  debarred  from  making  war  on  a  nation  who  op- 
poses me  with  all  her  might,  and  thus  exhausting  the  source 
of  those  succours  with  which  she  furnishes  my  enemy.  In 
what  light  am  I  to  consider  an  auxiliary  who  comes  to  make 
war  on  me  at  the  head  of  all  his  forces  ?  It  would  be  mock- 
ery on  his  part,  to  pretend  that  he  is  not  my  enemy.  What  [  330  ] 
more  could  he  do,  were  he  openly  to  declare  himself  such  ? 
He  shows  no  tenderness  for  me  on  the  occasion :  he  only 
wishes  that  a  tender  regard  should  be  paid  to  himself.  And 
shall  I  suffer  him  to  preserve  his  provinces  in  peace,  and 
secure  from  all  danger,  whilst  he  is  doing  me  all  the  mischief 
in  his  power  ?  No !  the  law  of  nature,  the  law  of  nations, 
obliges  us  to  be  just ;  but  does  not  condemn  us  to  be  dupes. 

But,  if  a  defensive  alliance  has  not  been  made  against  me  §  101.    in 
in  particular,  nor  concluded  at  the  time  when  I  was  openly what  ca£e  it 
preparing  for  war,  or  had  already  begun  it, — and  if  the  allies  does! not , 

,&       .      ,     '    ,    .      . .    , ,     ,      J  ,    6  „    ,,  '          i     n    p        -i        produce  the 

have  only  stipulated  in  it  that  each  of  them  shall  furnish  a  game  effcct> 
stated  succour  to  him  who  shall  be  attacked, — I  cannot  require 
that  they  should  neglect  to  fulfil  a  solemn  treaty,  which  they 
had  an  unquestionable  right  to  conclude  without  any  injury 
to  me.  In  furnishing  my  enemy  with  assistance,  they  only 
acquit  themselves  of  a  debt :  they  do  me  no  wrong  in  dis- 
charging it;  and,  consequently,  they  afford  me  no  just 
grounds  for  making  war  on  them(§  26).  Neither  can  I  say 
that  my  safety  obliges  me  to  attack  them;  for  I  should 
thereby  only  increase  the  number  of  my  enemies,  and,  in- 
stead of  a  slender  succour  which  they  furnish  against  me, 
should  draw  on  myself  the  whole  power  of  those  nations. 
It  is,  therefore,  only  the  troops  which  they  send  as  auxili- 
aries, that  I  am  to  consider  as  enemies.  These  are  actually 
united  with  my  enemies  and  fighting  against  me. 

The  contrary  principles  would  tend  to  multiply  wars,  and 
spread  them  beyond  all  bounds,  to  the  common  ruin  of  na- 
tions. It  is  happy  for  Europe,  that,  in  this  instance,  the 
established  custom  is  in  accord  with  the  true  principles.  A 
prince  seldom  presumes  to  complain  of  a  nation's  contributing 
to  the  defence  of  her  ally  by  furnishing  him  with  succours 
which  were  promised  in  former  treaties, — in  treaties  that 
were  not  made  against  that  prince  in  particular.  In  the  last 

435 


330  OF  THE  ENEMY'S  ALLIES,  ETC. 

BOOK  in.  war,  the  United  Provinces  long  continued  to  supply  the  queen 
CHAP.  YI.  Q£  jjungary  with  subsidies,  and  even  with  troops ;  and  France 
never  complained  of  these  proceedings  till  those  troops 
marched  into  Alsace  to  attack  the  French  frontier.  Switzer- 
land, in  virtue  of  her  alliance  with  France,  furnishes  that 
crown  with  numerous  bodies  of  troops,  and,  nevertheless, 
lives  in  peace  with  all  Europe*. 

There  is  one  case,  however,  which  might  form  an  exception 
to  the  general  rule ;  it  is  that  of  a  defensive  war  which  is 
evidently  unjust.  For  in  such  case  there  no  longer  exists 
any  obligation  to  assist  an  ally  (§§  86,  87,  89).  If  you  under- 
take to  do  it  without  necessity,  and  in  violation  of  your  duty, 
you  do  an  injury  to  the  enemy,  and  declare  against  him  out 
of  mere  wantonness.  But  this  is  a  case  that  very  rarely 
occurs  between  nations.  There  are  few  defensive  wars  with- 
out at  least  some  apparent  reason  to  warrant  their  justice  or 
necessity.  Now,  on  any  dubious  occasion,  each  state  is  sole 
judge  of  the  justice  of  her  own  cause ;  and  the  presumption 
is  in  favour  of  your  ally  (§  86).  Besides,  it  belongs  to  you 
alone  to  determine  what  conduct  on  your  part  will  be  con- 
[  331  ]  formable  to  your  duties  and  to  your  engagements ;  and  con- 
sequently nothing  less  than  the  most  palpable  evidence  can 
authorize  the  enemy  of  your  ally  to  charge  you  with  sup- 
porting an  unjust  war,  contrary  to  the  conviction  of  your 
own  conscience.  In  fine,  the  voluntary  law  of  nations  ordains, 
that,  in  every  case  susceptible  of  doubt,  the  arms  of  both 
parties  shall,  with  regard  to  external  effects,  be  accounted 
equally  lawful  (§40). 

g  102.  Whe-      The  real  associates  of  my  enemy  being  my  enemies,  I 
ther  it  be     have  against  them  the  same  rights  as  against  the  principal 
necessary  to  enemy  (§  95).      And  as  their  own  conduct  proclaims  them 
Gainst  th"  my  enemies>  an(*  tne7  take  up  arms  against  me  in  the  first 
enemy's  as-  instance,  I  may  make  war  on  them  without  any  declaration  : 
Bociatos.       the  war  being  sufficiently  declared  by  their  own  act.     This  is 
especially  the  case  of  those  who  in  any  manner  whatever 
concur  to  make  an  offensive  war  against  me  ;  and  it  is  like- 
wise the  case  of  all  those  whom  we  have  mentioned  in  §§  96, 
97,  98,  99,  100. 

But  it  is  not  thus  with  those  nations  which  assist  my  ene- 
my in  a  defensive  war :  I  cannot  consider  them  as  his  asso- 
ciates (§  101).  If  I  am  entitled  to  complain  of  their  furnish- 
ing him  with  succours,  this  is  a  new  ground  of  quarrel  between 
me  and  them.  I  may  expostulate  with  them,  and,  on  not  re- 
ceiving satisfaction,  prosecute  my  right,  and  make  war  on 
them.  But  in  this  case  there  must  be  a  previous  declaration 
(§  51).  The  example  of  Manlius,  who  made  war  on  the 
Galatians  for  having  supplied  Antiochus  with  troops,  is  not 
a  case  in  point.  Grotius*  censures  the  Roman  general  for 

*  De  Jure  Belli  et  Pacis,  lib.  iii.  cap.  iii.  $  10. 


OF   NEUTRALITY,    ETC.  331 

having  begun  that  war  without  a  declaration.  The  Galatians,  BOOK  m. 
in  furnishing  troops  for  an  offensive  war  against  the  Romans,  CHAP-  YTy 
had  declared  themselves  enemies  to  Rome.  It  would  appear, 
indeed,  that,  on  peace  being  concluded  with  Antiochus,  Man- 
lius  ought  to  have  waited  for  orders  from  Rome  before  he 
attacked  the  Galatians ;  and  then,  if  that  expedition  was  con- 
sidered as  a  fresh  war,  he  should  have  not  only  issued  a  de- 
claration, but  also  made  a  demand  of  satisfaction,  previous 
to  the  commencement  of  hostilities  (§  51).  But  the  treaty 
with  the  king  of  Syria  had  not  yet  received  its  consummation : 
and  it  concerned  that  monarch  alone,  without  making  any 
mention  of  his  adherents.  Therefore  Manlius  undertook  the 
expedition  against  the  Galatians,  as  a  consequence  or  a 
remnant  of  the  war  with  Antiochus.  This  is  what  he  himself 
very  well  observed  in  his  speech  to  the  senate  ;*  and  he  even 
added,  that  his  first  measure  was  to  try  whether  he  could 
bring  the  Galatians  to  reasonable  terms.  Grotius  more  appo- 
sitely quotes  the  example  of  Ulysses  and  his  followers, — 
blaming  them  for  having,  without  any  declaration  of  war, 
attacked  the  Ciconians,  who  had  sent  succours  to  Priam 
during  the  siege  of  Troy.f 


CHAP.  VII.  [  332  ] 

OF   NEUTRALITY — AND    THE   PASSAGE   OF  TROOPS   THROUGH   A   CHAP-  Yn- 
NEUTRAL   COUNTRY.  (151) 

NEUTRAL  nations  are  those  who,  in  time  of  war,  do  not  2 103-  ^eu- 
take  any  part  in  the  contest,  but  remain  common  friends  to tral  nations* 
both  parties,  without  favouring  the  arms  of  the  one  to  the 
prejudice  of  the  other.     Here  we  are  to  consider  the  obliga- 
tions and  rights  flowing  from  neutrality. 

In  order  rightly  to  understand  this  question,  we  must  avoid  $  104.  Con- 
confounding  what  may  lawfully  be  done  by  a  nation  that  is  duct  to  b£ 
free  from  all  engagements,  with  what  she  may  do  if  she  ex- observed  by 
pects  to  be  treated  as  perfectly  neutral  in  a  war.     As  long  as 
a  neutral  nation  wishes  securely  to  enjoy  the  advantages  of 
her  neutrality,  she  must  in  all  things  show  a  strict  impartial- 
ity towards  the  belligerent  power* :  for,  should  she  favour  one 
of  the  parties  to  the  prejudice  of  the  other,  she  cannot  com- 

*  Livy,  lib.  xxxviii.  mercial    Law,    43—64,   383 — i90 ;    Id. 

f  Grotius,  uli  supra,  not.  3.  Index,  tit  Neutrals,  and  in  Chitty's  L. 

(151)  The  modern    illustrating  deci-    Nat  14,  34—54,  153;  and  Id.  Index, 
sions  upon  neutrals,  and  neutrality,  -will     tit  Neutrals. — C. 
be  found  collected  in  1  Chitty's  Com- 

2*2  437 


382  OF  NEUTRALITY,   ETC. 

BOOK  in.  plain  of  being  treated  by  him  as  an  adherent  and  confederate 
CHAP.  YII.  Qf  yg  engj-Qy.  jjer  neutrality  would  be  a  fraudulent  neu- 
trality, of  which  no  nation  will  consent  to  be  the  dupe.  It  is 
sometimes  suffered  to  pass  unnoticed,  merely  for  want  of  abi- 
lity to  resent  it ;  we  choose  to  connive  at  it,  rather  than  excite 
a  more  powerful  opposition  against  us.  But  the  present  ques- 
tion is,  to  determine  what  may  lawfully  be  done,  not  what 
prudence  may  dictate  according  to  circumstances.  Let  us 
therefore  examine,  in  what  consists  that  impartiality  which  a 
neutral  nation  ought  to  observe. 

It  solely  relates  to  war,  and  includes  two  articles, — 1.  To 
give  no  assistance  when  there  is  no  obligation  to  give  it, — nor 
voluntarily  to  furnish  troops,  arms,  ammunition,  or  any  thing 
of  direct  use  in  war.     I  do  not  say,  "to  give  assistance 
equally,"  but  "to  give  no  assistance:"  for  it  would  be  absurd 
that  a  state  should  at  one  and  the  same  time  assist  two  nations 
at  war  with  each  other ;  and,  besides,  it  would  be  impossible  to 
do  it  with  equality.     The  same  things,  the  like  number  of 
troops,  the  like  quantity  of  arms,  of  stores,  &c.,  furnished  in 
different  circumstances,  are  no  longer  equivalent  succours. 
2.  In  whatever  does  not  relate  to  war,  a  neutral  and  impartial 
nation  must  not  refuse  to  one  of  the  parties,  on  account  of  his 
present  quarrel,  what  she  grants  to  the  other.     This  does  not 
deprive  her  of  the  liberty  to  make  the  advantage  of  the  state 
still  serve  as  her  rule  of  conduct  in  her  negotiations,  her 
friendly  connections,  and  her  commerce.     When  this  reason 
induces  her  to  give  preferences  in  things  which  are  ever  at  the 
free  disposal  of  the  possessor,  she  only  makes  use  of  her  right, 
and  is  not  chargeable  with  partiality.     But  to  refuse  any  of 
[  333  ]•  those  things  to  one  of  the  parties  purely  because  he  is  at  war 
with  the  other,  and  because  she  wishes  to  favour  the  latter, 
would  be  departing  from  the  line  of  strict  neutrality, 
g  105.   An       I  have  said  that  a  neutral  state  ought  to  give  no  assistance 
ally  may      to  either  of  the  parties,  when  "under  no  obligation  to  give  it." 
Buecltrd'ue  T1"8  restriction  is  necessary.     We  have  already  seen,  that 
from  him"    wnen  a  sovereign  furnishes  the  moderate  succour  due  in  virtue 
and  remain  of  a  former  defensive  alliance,  he  does  not  become  an  asso- 
neuter.        ciate  in  the  war(§  101).     He  may,  therefore,  fulfil  his  en- 
gagement, and  yet  observe  a  strict  neutrality.  Of  this,  Europe 
affords  frequent  instances. 

g  106.  Right     When  a  war  breaks  out  between  two  nations,  all  other  states 
of  remain-   that  are  not  bound  by  treaties  are  free  to  remain  neuter ;  and, 
ing  neuter,   jf  either  of  the  belligerent  powers  attempted  to  force  them  to 
a  junction  with  him,  he  would  do  them  an  injury,  inasmuch 
as  he  would  be  guilty  of  an  infringement  on  their  independ- 
ency in  a  very  essential  point.     To  themselves  alone  it  be- 
longs to  determine  whether  any  reason  exists  to  induce  them 
to  join  in  the  contest ;  and  there  are  two  points  which  claim 
their  consideration :  1.  The  justice  of  the  cause.     If  that  be 
evident,  injustice  is  not  to  be  countenanced :  on  the  contrary, 

438 


OF   NEUTRALITY,    ETC. 

it  is  generous  and  praiseworthy  to  succour  oppressed  inno-    BOOK  m. 
cence,  when  we  possess  the  ability.     If  the  case  be  dubious,  CHAP-  YIt- 
the  other  nations  may  suspend  their  judgment,  and  not  engage 
in  a  foreign  quarrel.     2.  When  convinced  which  party  has 
justice  on  his  side,  they  have  still  to  consider  whether  it  be 
for  the  advantage  of  the  state  to  concern  themselves  in  this 
affair,  and  to  embark  in  the  war. 

A  nation  making  war,  or  preparing  to  make  it,  often  pro-  2  10?-  Trea- 
poses  a  treaty  of  neutrality  to  a  state  of  which  she  entertains  iie{  neu" 
suspicions.     It  is  prudent  to  learn  betimes  what  she  has  to 
expect,  and  not  to  run  the  risk  of  a  neighbour's  suddenly  join- 
ing with  the  enemy  in  the  heat  of  the  war.     In  every  case 
where  neutrality  is  allowable,  it  is  also  allowable  to  bind  our- 
selves to  it  by  treaty. 

Sometimes  even  necessity  renders  this  justifiable.  Thus, 
although  it  be  the  duty  of  all  nations  to  assist  oppressed  inno- 
cence (Book  II.  §  4),  yet,  if  an  unjust  conqueror,  ready  to  in- 
vade his  neighbour's  possessions,  makes  me  an  offer  of  neu- 
trality when  he  is  able  to  crush  me,  what  can  I  do  better  than 
to  accept  it  ?  I  yield  to  necessity  ;  and  my  inability  dis- 
charges me  from  a  natural  obligation.  The  same  inability 
would  even  excuse  me  from  a  perfect  obligation  contracted  by 
an  alliance.  The  enemy  of  my  ally  threatens  me  with  a  vast 
superiority  of  force  :  my  fate  is  in  his  hand  :  he  requires  me 
to  renounce  the  liberty  of  furnishing  any  assistance  against 
him.  Necessity,  and  the  care  of  my  own  safety,  absolve  me 
from  my  engagements.  Thus  it  was  that  Louis  the  Four- 
teenth compelled  Victor  Amadeus,  duke  of  Savoy,  to  quit  the 
party  of  the  allies.  But,  then,  the  necessity  must  be  very 
urgent.  It  is  only  the  cowardly,  or  the  perfidious,  who  avail 
themselves  of  the  slightest  grounds  of  alarm,  to  violate  their 
promises  and  desert  their  duty.  In  the  late  war,  the  king  [  334  ] 
of  Poland,  elector  of  Saxony,  and  the  king  of  Sardinia,  firmly 
held  out  against  the  unfortunate  course  of  events,  and,  to  their 
great  honour,  could  not  be  brought  to  treat  without  the  con- 
currence of  their  allies. 

Another  reason  renders  these  treaties  of  neutrality  useful,  ?  108-   Ad- 
and  even  necessary.     A  nation  that  wishes  to  secure  her  own  dltlonal  re*- 
peace,  when  the  flames  of  war  are  kindling  in  her  neighbour-  ing  these 
hood,  cannot  more  successfully  attain  that  object  than  by  con-  treaties. 
eluding  treaties  with  both  parties,  expressly  agreeing  what 
each  may  do  or  require  in  virtue  of  the  neutrality.     This  is  a 
sure  mode  to  preserve  herself  in  peace,  and  to  obviate  all  dis- 
putes and  cavils. 

Without  such  treaties,  it  is  to  be  feared  that  disputes  will  §  109.  Foun- 
often  arise  respecting  what  neutrality  does  or  does  not  allow.  dation  of  the 
This  subject  presents  many  questions  which  authors  have  dis-  ~® 
cussed  with  great  heat,  and  which  have  given  rise  to  the  most 
dangerous  quarrels  between  nations.  Yet  the  law  of  nature 
and  of  nations  has  its  invariable  principles,  and  affords  rules 


439 


334  OF   NEUTRALITY,    ETC. 

BOOK  m.    on  this  head,  as  well  as  on  the  others.     Some  things  also  have 
CHAP,  vir.  grown  jnto  custom  among  civilized  nations,  and  are  to  be  con- 
formed to  by  those  who  would  not  incur  the  reproach  of  un- 
justly breaking  the  peace.*     As  to  the  rules  of  the  natural 
law  of  nations,  they  result  from  a  just  combination  of  the  laws 
of  war,  with  the  liberty,  the  safety,  the  advantages,  the  com- 
merce, and  the  other  rights  of1  neutral  nations.     It  is  on  this 
principle  that  we  shall  lay  down  the  following  rules : — 
\  no.  How     First,  no  act  on  the  part  of  a  nation,  which  falls  within  the 
bellowed    exerc*se  °f  her  rights,  and  is  done  solely  with  a  view  to  her 
moneylent  own  g°0(^  without  partiality,  without  a  design  of  favouring 
and  every  '  one  power  to  the  prejudice  of  another, — no  act  of  that  kind, 
kind  of        I  say,  can  in  general  be  considered  as  contrary  to  neutrality; 
things  sold,  nor  does  ft  0ec0me  such,  except  on  particular  occasions,  when 
brealh'of     **  cannot  take  place  without  injury  to  one  of  the  parties,  who 
neutrality,    has  then  a  particular  right  to  oppose  it.     Thus,  the  besieger 
has  a  right  to  prohibit  access  to  the  place  besieged  (see  §  117 
in  the  sequel).     Except  in  cases  of  this  nature,  shall  the  quar- 
rels of  others  deprive  me  of  the  free  exercise  of  my  rights  in 
the  pursuit  of  measures  which  I  judge  advantageous  to  my 
people  ?     Therefore,  when  it  is  the  custom  of  a  nation,  for  the 
purpose  of  employing  and  training  her  subjects,  to  permit 
levies  of  troops  in  favour  of  a  particular  power  to  whom  she 
thinks  proper  to  intrust  them, — the  enemy  of  that  power  can- 
not look  upon  such  permissions  as  acts  of  hostility,  unless  they 
are  given  with  a  view  to  the  invasion  of  his  territories,  or  the 
[  335  ]  support  of  an  odious  and  evidently  unjust  cause.     He  cannot 
even  demand,  as  matter  of  right,  that  the  like  favour  be 
granted  to  him, — because  that  nation  may  have  reasons  for 
refusing  him,  which  do  not  hold  good  with  regard  to  his  ad- 
versary ;  and  it  belongs  to  that  nation  alone  to  judge  of  what 
best  suits  her  circumstances.     The  Switzers,  as  we  have  al- 
ready observed,  grant  levies  of  troops  to  whom  they  please ; 
and  no  power  has  hitherto  thought  fit  to  quarrel  with  them  on 
that  head.     It  must,  however,  be  owned,  that,  if  those  levies 
were  considerable,  and  constituted  the  principal  strength  of 
my  enemy,  while,  without  any  substantial  reason  being  al- 
leged, I  were  absolutely  refused  all  levies  whatever, — I  should 
have  just  cause  to  consider  that  nation  as  leagued  with  my 
enemy ;  and,  in  this  case,  the  care  of  my  own  safety  would 
authorize  me  to  treat  her  as  such. 

The  case  is  the  same  with  respect  to  money  which  a  nation 
may  have  been  accustomed  to  lend  out  at  interest.  If  the 
sovereign,  or  his  subjects,  lend  money  to  my  enemy  on  that 

*  The   following  is  an  instance  : — It  at  liberty,  because  they  were  then  fallen 

was  determined  by  the  Dutch,  that,  on  into  the  power  of  a  nation  that  was  in 

a  vessel's  entering  a  neutral  port,  after  neutrality  with  the  belligerent  parties. — 

having  taken  any  of  the  enemies  of  her  The   same  rule   had  been  observed  by 

nation  prisoners  on  the  high  seas,  she  England  in  the  war  between  Spain  and 

should  be  obliged  to  set  those  prisoners  the  United  Provinces. 


OF   NEUTRALITY,    ETC.  335 

footing,  and  refuse  it  to  me  because  they  have  not  the  same    BOOK  nr- 
confidence  in  me,  this  is  no  breach  of  neutrality.     They  lodge  — 
their  property  where  they  think  it  safest.     If  such  preference 
be  not  founded  on  good  reasons,  I  may  impute  it  to  ill-will 
against  me,  or  to  a  predilection  for  my  enemy.     Yet  if  I 
should  make  it  a  pretence  for  declaring  war,  both  the  true  , 

principles  of  the  law  of  nations,  and  the  general  custom  hap- 
pily established  in  Europe,  would  join  in  condemning  me. 
While  it  appears  that  this  nation  lends  out  her  money  purely 
for  the  sake  of  gaining  an  interest  upon  it,  she  is  at  liberty 
to  dispose  of  it  according  to  her  own  discretion ;  and  I  have 
no  right  to  complain. 

But  if  the  loan  were  evidently  granted  for  the  purpose  of 
enabling  an  enemy  to  attack  me,  this  would  be  concurring  in 
the  war  against  me. 

If  the  troops,  above  alluded  to,  were  furnished  to  my  enemy 
by  the  state  herself,  and  at  her  own  expense,  or  the  money 
in  like  manner  lent  by  the  state,  without  interest,  it  would  no 
longer  be  a  doubtful  question  whether  such  assistance  were 
incompatible  with  neutrality. 

Further,  it  may  be  affirmed  on  the  same  principles,  that  if  a 
nation  trades  in  arms,  timber  for  ship-building,  vessels,  and 
warlike  stores, — I  cannot  take  it  amiss  that  she  sells  such 
things  to  my  enemy,  provided  she  does  not  refuse  to  sell  them 
to  me  also  at  a  reasonable  price.  She  carries  on  her  trade 
without  any  design  to  injure  me ;  and  by  continuing  it  in  the 
same  manner  as  if  I  were  not  engaged  in  war,  she  gives  me 
no  just  cause  of  complaint. 

In  what  I  have  said  above,  it  is  supposed  that  my  enemy  ?  in.  Trad« 
goes  himself  to  a  neutral  country  to  make  his  purchases.    Letof  neutral 
us  now  discuss  another  case , — that  of  neutral  nations  resort-  ^se'which1 
ing  to  my  enemy's  country  for  commercial  purposes.     It  is  are  at.  war. 
certain,  that,  as  they  have  no  part  in  my  quarrel,  they  are 
under  no  obligation  to  renounce  their  commerce  for  the  sake 
of  avoiding  to  supply  my  enemy  with  the  means  of  carrying  [  336  ] 
on  the  war  against  me.     Should  they  affect  to  refuse  selling 
me  a  single  article,  while  at  the  same  time  they  take  pains  to 
convey  an  abundant  supply  to  my  enemy,  with  an  evident  in- 
tention to  favour   him,  such  partial  conduct  would  exclude 
them  from  the  neutrality  they  enjoyed.    But  if  they  only  con- 
tinue their  customary  trade,  they  do  not  thereby  declare  them- 
selves against  my  interest :  they  only  exercise  a  right  which 
they  are  under  no  obligation  of  sacrificing  to  me.  (152) 

(152)  It  must  be  a  continuance  only  Deb.  935.     It  has  even  been  holden  that 

of  such  customary  trade.     See  Home  on  a  British-born  subject,  while  domiciled 

Captures,  215—233 ;  De  Tattet  v.  Tay-  in  a  neutral  country,  may  legally  trade 

lor,  4  Taunt.  238 ;  Sell  v.  Reid,  1  Maule  from  that  country  with  a  state  at  war 

&  Selw.   727;    and  an  able  speech  of  with  this  country.    Bell  v.  Reid,  1  Maule 

Lord  Erskine,  8th    March,  1808,  upon     A  Selwyn,  727. C. 

the  orders  in  Council ;  10  Cobbett's  Parl. 

56  441 


336  OF   NEUTRALITY,    ETC. 

BOOK  m.  On  the  other  hand,  whenever  I  am  at  war  with  a  nation, 
CHAP.  YII.  k0|.n  my  gafety  and  welfare  prompt  me  to  deprive  her,  as  far 
as  possible,  of  every  thing  which  may  enable  her  to  resist  or 
injure  me.  In  this  instance,  the  law  of  necessity  exerts  its  full 
force.  If  that  law  warrants  me,  on  occasion,  to  seize  what  be- 
longs to  other  people,  will  it  not  likewise  warrant  me  to  inter- 
cept every  thing  belonging  to'war,  which  neutral  nations  are 
carrying  to  my  enemy  ?  Even  if  I  should,  by  taking  such  mea- 
sures, render  all  those  neutral  nations  my  enemies,  I  had  better 
run  that  hazard,  than  suffer  him  who  is  actually  at  war  with  me 
thus  freely  to  receive  supplies  and  collect  additional  strength 
to  oppose  me.  It  is,  therefore,  very  proper,  and  perfectly 
conformable  to  the  law  of  nations  (which  disapproves  of  mul- 
tiplying the  causes  of  war),  not  to  consider  those  seizures  of 
the  goods  of  neutral  nations  as  acts  of  hostility. 

When  I  have  notified  to  them  my  declaration  of  war  against 
such  or  such  a  nation,  if  they  will  afterwards  expose  them- 
selves to  risk  in  supplying  her  with  things  which  serve  to 
carry  on  war,  they  will  have  no  reason  to  complain  if  their 
goods  fall  into  my  possession ;  and  I,  on  the  other  hand,  do 
not  declare  war  against  them  for  having  attempted  to  convey 
such  goods.  They  suffer,  indeed,  by  a  war  in  which  they  have 
no  concern ;  but  they  suffer  accidentally.  I  do  not  oppose 
their  right :  I  only  exert  my  own ;  and  if  our  rights  clash 
with  and  reciprocally  injure  each  other,  that  circumstance  is 
the  effect  of  inevitable  necessity.  Such  collisions  daily  hap- 
pen in  war.  When,  in  pursuance  of  my  rights,  I  exhaust  a 
country  from  which  you  derive  your  subsistence, — when  I  be- 
siege a  city  with  which  you  carried  on  a  profitable  trade,  I 
doubtless  injure  you ;  I  subject  you  to  losses  and  inconve- 
niences ;  but  it  is  without  any  design  of  hurting  you.  I  only 
make  use  of  my  rights,  and  consequently  do  you  no  injustice. 
But  that  limits  may  be  set  to  these  inconveniences,  and  that 
the  commerce  of  neutral  nations  may  subsist  in  as  great  a  de- 
gree of  freedom  as  is  consistent  with  the  laws  of  war,  there 
are  certain  rules  to  be  observed,  on  which  Europe  seems  to  be 
generally  agreed. 

g  112.  Con-     The  first  is,  carefully  to  distinguish  ordinary  goods  which 
traband       have  no  relation  to  war,  from  those  that  are  peculiarly  sub- 
goods,         servient  to  it.    Neutral  nations  should  enjoy  perfect  liberty  to 
trade  in  the  former :  the  belligerent  powers  cannot  with  any  rea- 
[  337  ]  *°n  refuse  it,  or  prevent  the  importation  of  such  goods  into  the 
enemy's  country :  the  care  of  their  own  safety,  the  necessity  of 
self-defence,  does  not  authorize  them  to  do  it,  since  those  things 
will  not  render  the  enemy  more  formidable.     An  attempt  to 
interrupt  or  put  a  stop  to  this  trade  would  be  a  violation 
of  the  rights  of  neutral  nations,  a  flagrant  injury  to  them  ; — 
necessity,  as  we  have  above  observed,  being  the  only  reason 
which  can  authorize  any  restraint  on  their  trade  and  navigation 
to  the  ports  of  the  enemy.  England  and  the  United  Provinces 

442 


OF   NEUTRALITY,    ETC. 


337 


having  agreed,  in  the  treaty  of  Whitehall,  signed  on  the  22d  of    BOOK  m. 
August,  1689,  to  notify  to  all  states  not  at  war  with  France,  CHAP'  TU' 
that  they  would  attack  every  ship  bound  to  or  coming  from 
any  port  of  that  kingdom,  and  that  they  beforehand  declared 
every  such  ship  to  be  a  lawful  prize, — Sweden  and  Denmark, 
from  whom  some  ships  had  been  taken,  entered  into  a  coun- 
ter-treaty on  the  17th  of  March,  1693,  for  the  purpose  of 
maintaining  their  rights  and  procuring  just  satisfaction.    And 
the  two  maritime  powers,  being  convinced  that  the  complaints 
of  the  two  crowns  were  well  founded,  did  them  justice.* 

Commodities  particularly  useful  in  war,  atid  the  importation 
of  which  to  an  enemy  is  prohibited,  are  called  contraband 
goods.  Such  are  arms,  ammunition,  timber  for  ship-building, 
every  kind  of  naval  stores,  horses, — and  even  provisions,  in  cer- 
tain junctures,  when  we  have  hopes  of  reducing  the  enemy 
by  famine.t(153) 

But,  in  order  to  hinder  the  transportation  of  contraband  $ 113-  whe- 
goods  to  an  enemy,  are  we  only  to  stop  and  seize  them,  Pa7~  ^a^ma 
ing  the  value  to  the  owner, — or  have  we  a  right  to  confiscate  be°confi8ca- 
them  ?     Barely  to  stop  those  goods  would  in  general  prove  ted. 
an  ineffectual  mode,  especially  at  sea,  where  there  is  no  pos- 
sibility of  entirely  cutting  off  all  access  to  the  enemy's  har- 
bours.    Recourse  is  therefore  had  to  the  expedient  of  confis- 
cating all  contraband  goods  that  we  can  seize  on,  in  order  that 
the  fear  of  loss  may  operate  as  a  check  on  the  avidity  of  gain, 
and  deter  the  merchants  of  neutral  countries  from  supplying 
the  enemy  with  such  commodities.     And,  indeed,  it  is  an  ob- 
ject of  such  high  importance  to  a  nation  at  war  to  prevent,  as 
far  as  possible,  the  enemy's  being  supplied  with  such  articles 

*  See  other  instances  in  Grotius  de  sold  both   arms   and  provisions  to  the 

Jure  Belli  et  Pacis,  lib.  iii.  cap.  i.  §  5,  Spaniards,  they  could  not  with  propri- 

not.  6.  ety  have  attempted  to  forbid  neutral 

f  The  Pensionary  De  Witt,  in  a  let-  nations    to   carry   on   a   similar  trade, 

ter  of  January  14,  1654,  acknowledges  (Grotius,  Hist  of  the  Disturbances   in 

that  it  would  be  contrary  to  the  law  of  the   Low  Countries,  book  vi.)     Never- 

nations  to  prevent  neutrals  from  carry-  theless,  in  1646,  the  United  Provinces 

ing   corn  to  an  enemy's  country;  but  published    an   edict  prohibiting    their 

he  says  that  we  may  lawfully  prevent  own  subjects  in  general,  and  even  neu- 

them  from  supplying   the  enemy  with  tral  nations,  to  carry  either  provisions 

cordage  and  other  materials  for  the  rig-  or  any  other  merchandise  to  Spain,  be- 

ging  and  equipment  of  »hip»  of  war.  cause   the    Spaniards,    "after    having, 

In  1597,  queen  Elizabeth  would  not  under  the  appearance  of  commerce,  al- 
allow  the  Poles  and  Danes  to  furnish  lured  foreign  vessels  to  their  ports,  de- 
Spain  with  provisions,  much  less  with  tained  them,  and  made  use  of  them  as 
arms,  alleging  that,  "according  to  the  ships  of  war."  And  for  this  reason, 
rules  of  war,  it  is  lawful  to  reduce  an  the  same  edict  declared  that  "  the  con- 
enemy  even  by  famine,  with  the  view  federates,  when  blocking  up  their  ene- 
of  obliging  him  to  sue  for  peace."  The  mies'  ports,  would  seize  upon  every 
United  Provinces,  finding  it  necessary  vessel  they  saw  steering  towards  those 
to  obsftrvo  u  greater  degree  of  circum-  places." — Ibid,  book  xv.  p.  572. — Ed. 
spection,  did  not  prevent  neutral  na-  A.D.  1797. 

*ions  from  carrying  on  every  kind  of         (153)    What  are    contraband    goods, 

commerce  with  Spain.     It  is  true,  in-  see   1    Chitty's    Comml.   L.   444 — 449, 

doed,  that,  while  their    own    subjects  and  Chitty's  L.  Nat.  119— 128.— C. 


338  OF   NEUTRALITY,    ETC. 

BOOK  in.  as  will  add  to  his  strength  and  render  him  more  dangerous, 
. CHAP-  TII-  that  necessity  and  the  care  of  her  own  welfare  and  safety  au- 
thorize her  to  take  effectual  methods  for  that  purpose,  and  to 
declare  that  all  commodities  of  that  nature,  destined  for  the 
enemy,  shall  be  considered  as  lawful  prize.  On  this  account 
she  notifies  to  the  neutral  states  her  declaration  of  war(§  63;) 
whereupon,  the  letter  usually 'give  orders  to  their  subjects  to 
refrain  from  all  contraband  commerce  with  the  nations  at  war, 
declaring,  that  if  they  are  captured  in  carrying  on  such  trade, 
the  sovereign  will  not  protect  them.  This  rule  is  the  point 
where  the  general*  custom  of  Europe  seems  at  present  fixed, 
after  a  number  of  variations,  as  will  appear  from  the  note  of 
Grotius,  which  we  have  just  quoted,  and  particularly  from  the 
ordinances  of  the  kings  of  France,  in  the  years  1543  and  1584, 
which  only  allow  the  French  to  seize  contraband  goods,  and 
to  keep  them  on  paying  the  value.  The  modern  usage  is  cer- 
tainly the  most  agreeable  to  the  mutual  duties  of  nations,  and 
the  best  calculated  to  reconcile  their  respective  rights.  The 
nation  at  war  is  highly  interested  in  depriving  the  enemy  of 
all  foreign  assistance  ;  and  this  circumstance  gives  her  a  right 
to  consider  all  those,  if  not  absolutely  as  enemies,  at  least  as 
people  that  feel  very  little  scruple  to  injure  her,  who  carry  to 
her  enemy  the  articles  of  which  he  stands  in  need  for  the  sup- 
port of  the  war.  She,  therefore,  punishes  them  by  the  con- 
fiscation of  their  goods.  Should  their  sovereign  undertake  to 
protect  them,  such  conduct  would  be  tantamount  to  his  fur- 
nishing the  enemy  with  those  succours  himself: — a  measure 
which  were  undoubtedly  inconsistent  with  neutrality.  When 
a  nation,  without  any  other  motive  than  the  prospect  of  gain, 
is  employed  in  strengthening  my  enemy,  and  regardless  of  the 
irreparable  evil  which  she  may  thereby  entail  upon  me,*  she 
is  certainly  not  my  friend,  and  gives  me  a  right  to  consider 
and  treat  her  as  an  associate  of  my  enemy.  In  order,  there- 
fore, to  avoid  perpetual  subjects  of  complaint  and  rupture,  it 
has,  in  perfect  conformity  to  sound  principles,  been  agreed 
that  the  belligerent  powers  may  seize  and  confiscate  all  con- 
traband goods  which  neutral  persons  shall  attempt  to  carry  to 
their  enemy,  without  any  complaint  from  the  sovereign  of 
those  merchants ;  as,  on  the  other  hand,  the  power  at  war 
does  not  impute  to  the  neutral  sovereigns  these  practices  of 
their  subjects.  Care  is  even  taken  to  settle  every  particular 
of  this  kind  in  treaties  of  commerce  and  navigation. 
J 114.  We  cannot  prevent  the  conveyance  of  contraband  goods, 

Searching    without  searching  neutral  vessels  that  we  meet  at  sea :  we 
[  339  ]  have  therefore  a  right  to  search  them.  Some  powerful  nations 

*  In  our  time,  the  king  of  Spain  pro-  with    military    stores ;    and    thus    he 

hibited   all   Hamburgh   ships  from  en-  obliged  the  Hamburghers  to  cancel  their 

tering   his   harbours,  because  that  city  treaty  with  the  Barbarians. — Ed.  A.  D, 

had  engaged  to  furnish  the  Algerines  1797. 
441 


OF   NEUTRALITY,    ETC. 

have   indeed,  at  different  times,  refused  to   submit  to  this    BOOK  m. 
search.     "After  the  peace  of  Vervins,  Queen  Elizabeth,  con-  CHAP'  YIT'. 
tinuing  the  war  against  Spain,  requested  permission  of  the  neutral 
king  of  France  to  cause  all  French  ships  bound  for  Spain  to  shlPs-(154) 
be  searched,  in  order  to  discover  whether  they  secretly  car- 
ried any  military  stores  to  that  country :  but  this  was  refused, 
as  an  injury  to  trade,  and  a  favourable  occasion  for  pillage."* 
At  present,  a  neutral  ship  refusing  to  be  searched,  would  from 
that  proceeding  alone  be  condemned  as  a  lawful  prize.  (154) 
But,  to  avoid  inconveniences,  oppression,   and  every  other 
abuse,  the  manner  of  the  search  is  settled  in  the  treaties  of 
navigation  and  commerce.     It  is  the  established  custom  at 
present  to  give  full  credit  to  the  certificates,  bills  of  lading, 
&c.,  produced  by  the  master  of  the  ship,  unless  any  fraud 
appear  in  them,   or  there  be  good  reasons  for  suspecting 
it.  (155) 

If  we  find  an  enemy's  effects  on  board  a  neutral  ship,  we  §  115.  Ene- 

seize  them  by  the  rights  of  war :  (156)  but  we  are  naturally  my's  Pr°- 
J  ^        ' J  perty  on 


(154)  As  to  the  right  of  visiting  and 
searching  neutral  ships,  see  the  cele- 
brated letter  of  the  Duke  of  Newcastle 
to  the  Prussian  Secretary,  A.  D.  1752 ; 
1  Collect.  Jurid.  138;  and  Halliday's 
Life  of  Lord  Mansfield;  Elements  of 
General  History,  vol.  iii.  p.  222 ;  Mar- 
shall on  Insurance,  book  i.  ch.  8,  sect. 
5 ;  Garrets  v.  Kensington,  8  Term  Rep. 
230 ;  Lord  Erskine's  Speech  upon  Or- 
ders in  council,  8  March,  1808;  10 
Cobbett's  Parl.  Deb.  955  ;  Baring  upon 
Orders  in  Council,  p.  102.  Clearly  at 
this  day  the  right  of  search  exists  prac- 
tically as  well  as  theoretically. 

The  right  of  search,  and  of  the  con- 
sequence of  resistance,  and  of  the  pa- 
pers and  documents  that  ought  to  be 
found  on  board  the  neutral  vessels,  are 
most  clearly  established  by  the  best 
modern  decisions ;  see  Barker  v.  Slakes, 
9  East  Rep.  283,  and  numerous  other 
cases,  collected  in  1  Chitty's  Commer- 
cial Law,  482—489;  Chitty's  L.  Nat 
190  —  199.  The  international  law 
upon  the  subject  will  be  found  admi- 
rably summed  up  by  Sir  \Vm.  Scott,  in 
his  Judgment  in  the  case  of  the  Maria, 
1  Rob.  Rep.  346,  and  1  Edwards's  Rep. 
208,  confirming  the  authority  of  Vat- 
tel,  and  on  which  he  thus  concludes: 
"  I  stand  with  confidence  upon  all  fair 
principles  of  reason, — upon  the  distinct 
authority  of  Vattel,  and  upon  the  insti- 
tutes of  other  great  maritime  countries, 
as  well  as  those  of  our  own  country, 
when  I  venture  to  lay  it  down  that,  by 
the  law  of  nations,  as  now  understood, 


a  deliberate  and  continued  resistance 
of  search,  on  the  part  of  a  neutral  ves- 
sel, to  a  lawful  cruiser,  is  followed  by 
the  legal  consequences  of  confiscation." 
And  see  Dispatch,  3  Rob.  Rep.  278; 
Elsabc,  4  Rob.  Rep.  408 ;  Pennsylvania, 
1  Acton's  Rep.  33;  Saint  Juan  Bap- 
tista,  5  Rob.  Rep.  33 ;  Maria,  1  Rob. 
Rep.  340;  Mentor,  1  Edward,  268;  Ca- 
therina  Elizabeth,  5  Rob.  Rep.  232.  See 
the  modern  French  view  of  the  right 
of  visitation  and  search,  Cours  de 
Droits  Public,  torn.  i.  p.  84.  Paris :  A.  D. 
1830.— C.— { And  the  American,  The 
Eleanor,  2  Wheat.  Rep.  345;  The  U. 
States  v.  La  Jeune  Eugenie,  2  Mass.  Rep. 
409 ;  The  Marianna  Flora,  3  Mass.  Rep. 
116 ;  Maley  v.  Shattuck,  3  Cranch,  458.} 

*  Grotius,  ubi  supra. 

(155)  As  to  papers  and  documents 
that  ought  to  be  on  board,  see  1  Chit- 
ty's Commercial  Law,  487 — 489,  and 
Chitty's  L.  Nat.  196—199,  and  autho- 
rities there  collected.  The  owner  of  the 
neutral  vessel  has  no  remedy  for  loss 
of  voyage,  or  other  injury  occasioned 
by  the  reasonable  exercise  of  the  right 
of  search  (infra  note),  but  he  may  in- 
sure against  the  risk ;  Barker  v.  Slakes, 
9  East,  283.— C.— {See  Maley  v.  Shat- 
tuck, 3  Cranch,  458. } 

(15.6)  Particular  states  have  relaxed 
the  rigour  of  this  rule,  and,  by  express 
treaty,  granted  immunity,  by  establish- 
ing a  maxim,  "  Free  ships,  free  goods ;" 
see  instances,  5  Rob.  Rep.  52;  6  Rob. 
Rep.  24,  41— 358.— C. 


2N 


445 


339  OF   NEUTRALITY,    ETC. 

BOOK  m.    bound  to  pay  the  freight  to  the  master  of  the  vessel,  who  is 
CHAP-  YIIv  not  to  suffer  by  such  seizure.*  (157) 

board  a  neu-  The  effects  of  neutrals,  found  in  an  enemy's  ships,  are  to 
trai  ship.^  |je  restored  to  the  owners,  against  whom  there  is  no  right  of 
j-ral  '^y  confiscation ;  but  without  any  allowance  for  detainer,  decay, 
on  board  an  &c-  (158)  The  loss  sustained  by  the  neutrals  on  this  occa- 
enemy's  sion  is  an  accident  to  which  they  exposed  themselves  by  em- 
shiP-  barking  their  property  in  an  enemy's  ship ;  and  the  captor, 

in  exercising  the  rights  of  war,  is  not  responsible  for  the  ac- 
cidents which  may  thence  result,  any  more  than  if  his  cannon 
kills  a  neutral  passenger  who  happens  unfortunately  to  be  on 
board  an  enemy's  vessel.  (158) 

§  117.  Trade  Hitherto  we  have  considered  the  commerce  of  neutral  na- 
t*°ns  W^  *^e  ter"tor^es  °f  tne  enemy  in  general.  There  is  a 
Particular  case  in  which  the  rights  of  war  extend  still  farther. 
All  commerce  with  a  besieged  town  is  absolutely  prohibited. 
Blockade.  If  I  lay  siege  to  a  place,  or  even  simply  blockade  it,  I  have  a 
right  to  hinder  any  one  from  entering,  and  to  treat  as  an 
enemy  whoever  attempts  to  enter  the  place,  or  carry  any 
thing  to  the  besieged,  without  my  leave ;  for  he  opposes  my 
undertaking,  and  may  contribute  to  the  miscarriage  of  it,  and 
thus  involve  me  in  all  the  misfortunes  of  an  unsuccessful  war. 
[  340  ]  King  Demetrius  hanged  up  the  master  and  pilot  of  a  vessel 
carrying  provisions  to  Athens  at  a  time  when  he  was  on  the 
point  of  reducing  that  city  by  famine.f  In  the  long  and 
bloody  war  carried  on  by  the  United  Provinces  against  Spain 

*  {See  the  rule  as  recognised  by  the  1  Molloy,  1— 18 j  and   Twilling  Ruet,  5 

United  States.     The  Nereide,  9  Cranch,  Rob.  Rep.  82. — C. 

110.} — "I  have  obtained,"  said  the  am-  (158)  1  Chitty's  Commercial  Law, 
bassador  Boreel,  in  a  letter  to  the  Grand  440  ;  Grotius,  b.  iii.  c.  vi.  §  vi. ;  Mar- 
Pensionary,  De  Witt,  "  the  abrogation  shall  on  Insurance,  b.  i.  c.  viii.  §  v.  Tho 
of  that  pretended  French  law,  that  ene-  loss  of  voyage  and  damage  may  be  in- 
mies'  property  involves  in  confiscation  the  sured  against;  Barker  v.  Slakes,  9  East, 
property  of  friends ;  so  that,  if  hence-  Rep.  283.— C. 

forward  any  effects    belonging  to   the  (159)  As  to  violation  of  blockade  in 

enemies  of  France  be   found  in  a  free  general,  see   the   modern    decisions,  1 

Dutch  vessel,  those  effects  alone  shall  Chitty's    Commercial     Law,   449    and 

be  liable  to  confiscation;  and  the  vessel  460—492;    Chitty's    L.  Nat.  129— 144, 

shall  be  released,  together  with  all  the  and  259;  and  see,  as  to  the  distinction 

other  property  on  board.     But  I  find  it  between     a    military    and    commercial 

impossible  to  obtain  the  object  of  the  blockade,  and  their  effect,  1  Acton's  Rep. 

twenty-fourth,  article  of  my  instructions,  128.      On  a  question    of  violation    of 

which  gays,  that  the  immunity  of  the  vee-  blockade,    Sir   W.  Scott    said,   "  Three 

set  shall  extend  to  the  eargo,  even  if  enc-  things  must  be  proved — 1st,  the  exist- 

mies'  property."     De  Witt's  Letters  and  ence  of  an  actual  blockade ;  2dly,   the 

Negotiations,  vol.  i.  p.  80. — Such  a  law  knowledge  of  the  party  supposed  to  have 

as  the  latter  would  be  more  natural  than  offended ;  and  3dly,  some  act  of  viola- 

the  former. — Edit  A.  D.  1797.  tion,  either  by  going  in  or  coming  out 

(157)   [Schwartz  v.   The  Int.  Co.  of  with  a  cargo  laden  after  the  commence- 

North   America,   3    Wash.    C.   C.    Rep.  ment  of  blockade."     In  case  of  Betsy, 

117.J — But,  in  these  cases,  the  freight  1  Rob.  Rep.  92,  and  Nancy,  1  Acton's 

to  be  paid  is  not  necessarily  to  be  mea-  Rep.  59.— C.— \Fitzsimmons  v.  TheNew- 

sured  by  the  terms  of  the  charter-party,  port  Ins.  Co.,  4  Cranch,  185. } 
f  Plutarch,  in  Demetrio. 


OF   NEUTRALITY,    ETC.  340 

for  the  recovery  of  their  liberties,  they  would  not  suffer  the  BOOK  m. 
English  to  carry  goods  to  Dunkirk,  before  which  the  Dutch  CHAP-  Yn- 
fleet  lay.* 

A  neutral  nation  preserves,  towards  both  the  belligerent  §  us.  im- 
powers,  the  several  relations  Avhich  nature  has  instituted  be-  partial  offi- 
tween  nations.  She  ought  to  show  herself  ready  to  render  ^lgof  neu' 
them  every  office  of  humanity  reciprocally  due  from  one  na- 
tion to  another :  she  ought,  in  every  thing  not  directly  relat- 
ing to  war,  to  give  them  all  the  assistance  in  her  power,  and 
of  which  they  may  stand  in  need.  Such  assistance,  however, 
must  be  given  with  impartiality ;  that  is  to  say,  she  must  not 
refuse  any  thing  to  one  of  the  parties  on  account  of  his  being 
at  war  with  the  other  (§  104).  But  this  is  no  reason  why  a 
neutral  state,  under  particular  connections  of  friendship  and 
good  neighbourhood  with  one  of  the  belligerent  powers,  may 
not,  in  every  thing  that  is  unconnected  with  war,  grant  him 
all  those  preferences  which  are  due  to  friends:  much  less 
does  she  afford  any  grounds  of  exception  to  her  conduct,  if,  in 
commerce,  for  instance,  she  continues  to  allow  him  such  indul- 
gences as  have  been  stipulated  in  her  treaties  with  him.  She 
ought,  therefore,  as  far  as  the  public  welfare  will  permit, 
equally  to  allow  the  subjects  of  both  parties  to  visit  her  terri- 
tories on  business,  and  there  to  purchase  provisions,  horses, 
and,  in  general,  every  thing  they  stand  in  need  of, — unless 
she  has,  by  a  treaty  of  neutrality,  promised  to  refuse  to  both 
parties  such  articles  as  are  used  in  war.  Amidst  all  the  wars 
which  disturb  Europe,  the  Switzers  preserve  their  territories 
m  a  state  of  neutrality.  Every  nation  indiscriminately  is  al- 
lowed free  access  for  the  purchase  of  provisions,  if  the  coun- 
try has  a  surplus,  and  for  that  of  horses,  ammunition,  and 
arms. 

An  innocent  passage  is  due  to  all  nations  with  whom  a  state  \  119.   Pas- 
is  at  peace  (Book  II.  §  123) ;  and  this  duty  extends  to  troops  sase  of 
as  well  as  to  individuals.     But  it  rests  with  the  sovereign  of  *™°PS  h 
the  country  to  judge  whether  the  passage  be  innocent ;  and  it  nen°trfi 
is  very  difficult  for  that  of  an  army  to  be  entirely  so.     In  the  country, 
late  wars  of  Italy  the  territories  of  the  republic  of  Venice  and 
those  of  the  pope  sustained  very  great  damage  by  the  passage 
of  armies,  and  often  became  the  theatre  of  the  war. 

Since,  therefore,  the  passage  of  troops,  and  especially  that  \  120.   Pas- 
of  a  whole  army,  is  by  no  means  a  matter  of  indifference,  he  sase  to  be 
who  desires  to  march  his  troops  through  a  neutral  country,  asked- 
must  apply  for  the  sovereign's  permission.     To  enter  his  ter- 
ritory without  his  consent,  is  a  violation  of  his  rights  of  sove- 
reignty and  supreme  dominion,  by  virtue  of  which,  that  coun- 
try is  not  to  be  disposed  of  for  any  use  whatever,  without 
his  express  or  tacit  permission.     Now,  a  tacit  permission  for  [  341  ] 
the  entrance  of  a  body  of  troops  is  not  to  be  presumed,  since 


Grotius,  ubi  supra. 

447 


341  OF   NEUTRALITY,    ETC. 

BOOK  in.    their  entrance  may  be  productive  of  the  most  serious  conse- 
CHAP-  Tn-  quences. 

§  121.  it  ^  tne  neutral  sovereign  has  good  reasons  for  refusing  a 
may  be  re-  passage,  he  is  not  obliged  to  grant  it, — the  passage  in  that 
fused  for  case  being  no  longer  innocent. 

good  rea-  jn  ajj  doubtful  cases  we  must  submit  to  the  judgment  of 
a  122.  in  *he  proprietor  respecting  the'  innocence  of  the  use  we  desire 
what  case  it  to  make  of  things  belonging  to  another  (Book  II.  §§  128,  130), 
may  be  and  must  acquiesce  in  his  refusal,  even  though  we  think  it 
forced.  unjust.  If  the  refusal  be  evidently  unjust,— if  the  use,  and, 
in  the  case  now  before  us,  the  passage  be  unquestionably  in- 
nocent,— a  nation  may  do  herself  justice,  and  take  by  force 
what  is  unjustly  denied  to  her.  But  we  have  already  observed, 
that  it  is  very  difficult  for  the  passage  of  an  army  to  be  ab- 
solutely innocent,  and  much  more  so  for  the  innocence  to  be 
very  evident.  So  various  are  the  evils  it  may  occasion,  and 
the  dangers  that  may  attend  it, — so  complicated  are  they  in 
their  nature,  and  so  numerous  are  the  circumstances  with 
which  they  are  connected, — that,  to  foresee  and  provide  for 
every  thing,  is  next  to  impossible.  Besides,  self-interest  has 
so  powerful  an  influence  on  the  judgments  of  men,  that  if  he 
who  requires  the  passage  is  to  be  the  judge  of  its  innocence, 
he  will  admit  none  of  the  reasons  brought  against  it ;  and 
thus  a  door  is  opened  to  continual  quarrels  and  hostilities. 
The  tranquillity,  therefore,  and  the  common  safety  of  nations 
require  that  each  should  be  mistress  of  her  own  territory,  and 
at  liberty  to  refuse  every  foreign  army  an  entrance,  when  she 
has  not  departed  from  her  natural  liberties  in  that  respect,  by 
treaties.  From  this  rule,  however,  let  us  except  those  very 
uncommon  cases  which  admit  of  the  most  evident  demonstra- 
tion that  the  passage  required  is  wholly  unattended  with  in- 
convenience or  danger.  If,  on  such  an  occasion,  a  passage  be 
forced,  he  who  forces  it  will  not  be  so  much  blamed  as  the  na- 
tion that  has  indiscreetly  subjected  herself  to  this  violence. 
Another  case,  which  carries  its  own  exception  on  the  very 
face  of  it,  and  admits  not  of  the  smallest  doubt,  is  that  of  ex- 
treme necessity.  Urgent  and  absolute  necessity  suspends  all 
the  rights  of  property  (Book  II.  §§  119, 123) :  and  if  the  pro- 
prietor be  not  under  the  same  pressure  of  necessity  as  you,  it 
is  allowable  for  you,  even  against  his  will,  to  make  use  of  what 
belongs  to  him.  When,  therefore,  an  army  find  themselves 
exposed  to  imminent  destruction,  or  unable  to  return  to  their 
own  country,  unless  they  pass  through  neutral  territories,  they 
have  a  right  to  pass  in  spite  of  the  sovereign,  and  to  force 
their  way,  sword  in  hand.  But  they  ought  first  to  request  a 
passage,  to  offer  securities,  and  pay  for  whatever  damages  they 
may  occasion.  Such  was  the  mode  pursued  by  the  Greeks  on 
their  return  from  Asia,  under  the  conduct  of  Agesilaus.* 

*  Plutarch's  Life  of  Agesilaus. 


OF   NEUTRALITY,    ETC.  342 

Extreme  necessity  may  even  authorize  the  temporary  seizure   BOOK  m. 
of  a  neutral  town,  and  the  putting  a  garrison  therein,  with  a  CHAP-  Tn- 
view  to  cover  ourselves  from  the  enemy,  or  to  prevent  the  exe- 
cution of  his  designs  against  that  town,  when  the  sovereign  is 
not  able  to  defend  it.     But  when  the  danger  is  over,  we  must 
immediately  restore  the  place,  arid  pay  all  the  charges,  in- 
conveniences, and  damages,  which  we  have  occasioned  by 
seizing  it. 

When  the  passage  is  not  of  absolute  necessity,  the  bare  §  123.   The 
danger  which  attends  the  admission  of  a  powerful  army  into  fear  of  dan- 
our  territory,  may  authorize  us  to  refuse  them  permission  to^a"t^°" 
enter.     We  may  have  reason  to  apprehend  that  they  will  be  fusalj 
tempted  to  take  possession  of  the  country,  or  at  least  to  act 
as  masters  while  they  are  in  it,  and  to  live  at  discretion.  Let 
it  not  be  said,  with  Grotius,*  that  he  who  requires  the  passage 
is  not  to  be  deprived  of  his  right  on  account  of  our  unjust 
fears.     A  probable  fear,  founded  on  good  reasons,  gives  us  a 
right  to  avoid  whatever  may  realize  it ;  and  the  conduct  of 
nations  affords  but  too  just  grounds  for  the  fear  in  question. 
Besides,  the  right  of  passage  is  not  a  perfect  right,  unless  in 
a  case  of  urgent  necessity,  or  when  we  have  the  most  perfect 
evidence  that  the  passage  is  innocent. 

But,  in  the  preceding  section,  I  suppose  it  impracticable  to  §  124.  or  a 
obtain  sufficient  security  which  shall  leave  us  no  cause  to  ap- demand  of 
prehend  any  hostile  attempts  or  violent  proceedings  on  the  g™^"!^ 
part  of  those  who  ask  permission  to  pass.     If  any  such  secu-  curity. 
rity  can  be  obtained,  (and  the  safest  one  is,  to  allow  them  to 
pass  only  in  small  bodies,  and  upon  delivering  up  their  arms, 
as  has  been  sometimes  required, f)  the  reason  arising  from  fear 
no  longer  exists.     But  those  who  wish  to  pass  should  consent 
to  give  every  reasonable  security  required  of  them,  and  con- 
sequently submit  to  pass  by  divisions  and  deliver  up  their  arms, 
if  the  passage  be  denied  them  on  any  other  terms.  The  choice 
of  the  security  they  are  to  give  does  not  rest  with  them.    Host- 
ages, or  a  bond,  would  often  prove  very  slender  securities.    Of 
what  advantage  will  it  be  to  me  to  hold  hostages  from  one 
who  will  render  himself  master  over  me  ?     And  as  to  a  bond, 
it  is  of  very  little  avail  against  a  priuce  of  much  superior 
power. 

But,  is  it  always  incumbent  on  us  to  give  every  security  a-g  125.  Whe- 
nation  may  require,  when  we  wish  to  pass  through  her  terri-  ther  always 
tories  ? — In  the  first  place,  we  are  to  make  a  distinction  be-  nf cessai7 to 
tween  the  different  reasons  that  may  exist  for  our  passing  SndTS. 
through  the  country;  and  we  are  next  to  consider  the  man- curity  re- 
ners  of  the  people  whose  permission  we  ask.     If  the  passage  quired, 
be  not  essentially  necessary,  and  can  be  obtained  only  on  sus- 
picious or  disagreeable  conditions,  we  must  relinquish  all  idea 

*  Book  ii.  chap.  ii.  g  13,  note  5. 

•j-  By  the  Eleans,  and  the  ancient  inhabitants  of  Cologne.    See  Grotius,  ibid. 
W  2s2  449 


342  OF   NEUTRALITY,    ETC. 

BOOK  m.    of  it,  as  in  the  case  of  a  refusal  (§  122).    But,  if  necessity  au- 
JJHAP.  TII.  thorizes  me  t0  pasSj  the  conditions  on  which  the  passage  will 


be  granted  may  be  accepted  or  rejected,  according  to  the  man- 
ners of  the  people  I  am  treating  with.  Suppose  I  am  to  cross 
[  343  ]  the  country  of  a  barbarous,  savage,  and  perfidious  nation, — 
shall  I  leave  myself  at  their  discretion,  by  giving  up  my  arms 
and  causing  my  troops  to  march  in  divisions  ?  No  one,  I  pre- 
sume, will  condemn  me  to  take  so  dangerous  a  step.  Since 
necessity  authorizes  me  to  pass,  a  kind  of  new  necessity  arises 
for  my  passing  in  such  a  posture  as  will  secure  me  from  any 
ambuscade  or  violence.  I  will  offer  every  security  that  can 
be  given  without  foolishly  exposing  myself;  and  if  the  offer  is 
rejected,  I  must  be  guided  by  necessity  and  prudence, — and, 
let  me  add,  by  the  most  scrupulous  moderation,  in  order  to 
avoid  exceeding  the  bounds  of  that  right  which  I  derive  from 
necessity. 

g  126.  E-  If  the  neutral  state  grants  or  refuses  a  passage  to  one  of  the 
quality  to  be  parties  at  war,  she  ought,  in  like  manner,  to  grant  or  refuse 
observed  to-  ^  ^  ^  other,  unless  a  change  of  circumstances  affords  her 

wards  both         ,  .       °     ,  .  ,TT. 

parties  as  to  substantial  reasons  for  acting  otherwise.     Without  such  rea- 
the  passage,  sons,  to  grant  to  one  party  what  she  refuses  to  the  other,  would 
be  a  partial  distinction,  and  a  departure  from  the  line  of  strict 
neutrality. 

g  107.   No       When  I  have  no  reason  to  refuse  a  passage,  the  party  against 
complaint     whom  it  is  granted  has  no  right  to  complain  of  my  conduct, 
hes  agamst  mucj1  }ess  to  make  jt  the  ground  of  a  hostile  attack  upon  me, 
etate  for      since  I  have  done  no  more  than  what  the  law  of  nations  en- 
granting  a    joins  (§  119).     Neither  has  he  any  right  to  require  that  I 
passage.       should  deny  the  passage  ;  for  he  must  not  pretend  to  hinder 
me  from  doing  what  I  think  agreeable  to  my  duty.  And  even 
on  those  occasions  when  I  might  with  justice  refuse  permission 
to  pass,  I  am  at  liberty  to  abstain  from  the  exertion  of  my 
right.     But  especially  when  I  should  be  obliged  to  support 
my  refusal  by  the  sword,  who  will  take  upon  him  to  complain 
of  my  having  permitted  the  war  to  be  carried  into  his  country, 
rather  than  draw  it  on  myself?  No  sovereign  can  require  that 
I  should  take  up  arms  in  his  favour,  unless  obliged  to  it  by 
treaty.     But  nations,  more  attentive  to  their  own  interests 
than  to  the  observance  of  strict  justice,  are  often  very  loud  on 
this  pretended  subject  of  complaint.     In  war,  especially,  they 
stick  at  no  measures ;  and  if  by  their  threats  they  can  induce 
a  neighbouring  state  to  refuse  a  passage  to  their  enemy,  the 
generality  of  their  rulers  consider  this  conduct  only  as  a  stroke 
of  good  policy. 

state  may  "  ^  powerful  state  will  despise  these  unjust  menaces :  firm 
refuse  it  and  unshaken  in  what  she  thinks  due  to  justice  and  to  her  own 
from  a  fear  reputation,  she  will  not  suffer  herself  to  be  diverted  by  the  fear 
of  the  re-  Of  a  groundless  resentment :  she  will  not  even  bear  the  menace. 
the^pMite  But  a  wea^  nation,  unable  to  support  her  rights,  will  be  under 
party;  a  necessity  of  consulting  her  own  safety;  and  this  important 


OF   NEUTRALITY,    ETC.  343 


concern  will  authorize  her  to  refuse  a  passage,  which  would   BOOK 
expose  her  to  dangers  too  powerful  for  her  to  repel. 


nr. 

AP.    VII- 


Another  fear  may  also  warrant  her  in  refusing  a  passage,  §  129.    And 
namely,  that  of  involving  her  country  in  the  disorders  and lest  hcr 
calamities  of  war.     For,  even  if  the  party  against  whom  ac°un.^y, 

..',,  T_  j         .  •  .  should  be- 

passage  is  requested,  should  observe  such  moderation  as  not  come  the 
to  employ  menaces  for  the  purpose  of  intimidating  the  neutral  theatre  of 
nation  into  a  refusal,  he  will  hardly  fail  to  demand  a  passage  war- 
for  himself  also  :  he  will  march  to  meet  his  enemy  ;  and  thus  [  344  ] 
the  neutral  country  will  become  the  theatre  of  war.     The  in- 
finite evils  of  such  a  situation  are  an  unexceptionable  reason 
for  refusing  the  passage.    In  all  these  cases,  he  who  attempts 
to  force  a  passage,  does  an  injury  to  the  neutral  nation,  and 
gives  her  most  just  cause  to  unite  her  arms  with  those  of  his 
adversary.  The  Switzers,  in  their  alliances  with  France,  have 
promised  not  to  grant  a  passage  to  her  enemies.     They  ever 
refuse  it  to  all  sovereigns  at  war,  in  order  to  secure  their  fron- 
tiers from  that  calamity ;  and  they  take  care  that  their  terri- 
tory shall  be  respected.  But  they  grant  a  passage,  to  recruits, 
who  march  in  small  bodies,  and  without  arms. 

The  grant  of  permission  to  pass  includes  a  grant  of  every  g  130.  mat 
thing  which  is  naturally  connected  with  the  passage  of  troops,  is  included 
and  without  which  the  passage  would  be  impracticable ;  such  jj the  £rant 
as  the  liberty  of  carrying  with  them  whatever  may  be  neces-  °  passase- 
sary  for  an  army, — that  of  exercising  military  discipline  on 
the  soldiers  and  officers,  and  of  purchasing,  at  a  fair  price, 
every  thing  the  army  may  want,  unless,  through  fear  of  scar- 
city, a  particular  exception  has  been  made,  to  oblige  them  to 
carry  with  them  their  own  provisions. 

He  who  grants  the  passage  is  bound  to  render  it  safe,  as  far  §  131.  Safe- 
as  depends  on  him.     Good  faith  requires  this ;  and  to  act  ty  of  the 
otherwise  would  be  ensnaring  those  to  whom  the  passage  is  Passase- 
granted. 

For  this  reason,  and  because  foreigners  can  do  nothing  in  g  132,   No 
a  territory  against  the  will  of  the  sovereign,  it  is  unlawful  to  hostility  to 
attack  an  enemy  in  a  neutral  country,  or  to  commit  in  it  any  ^ ^^j,. 
other  act  of  hostility.    The  Dutch  East- India  fleet  having  pot  tnd  eonn- 
into  Bergen,  in  Norway,  in  1666,  to  avoid  the  English,  the  try.  (ieo> 
British  admiral  had  the  temerity  to  attack  them  there.     But 
the  governor  of  Bergen  fired  on  the  assailants ;  and  the  court 
of  Denmark  complained,  though  perhaps  too  faintly,  of  an  at- 
tempt so  injurious  to  her  rights  and  dignity.*  (160) 

*  The  author  of  the  "  Present  State  sea,  within  cannon-shot  of  the  coast,  is 

of  Denmark,"  written  in  English,  pre-  considered  as  making  a  part  of  the  ter- 

tends  that  the  Danes  had  engaged  to  ritory;  and,  for  that  reason,  a  vessel 

deliver  up  the  Dutch  fleet,  but  that  some  taken  under  the  cannon  of  a  neutral 

seasonable  presents,  made  to  the  court  fortress,  is  not  a  lawful  prize.  Ante, 

of  Copenhagen,  saved  it.  Chap.  x.  book  i.  chap,  xxiii.  s.  289,  p.  129 ;  Mar- 

(160)  At  present,  by  the  general  ten's  L.  N.  b.  viii.  chap.  vi.  s.  6 ;  and 

uiw  of  nations,  the  whole  space  of  the  see  1  Molloy,  b.  i.  chap.  iii.  s.  7 ;  and 

451 


344  OF  NEUTRALITY,    ETC. 

BOOK.  in.        To  conduct  prisoners,  to  convey  spoil  to  a  place  of  safety, 
CHAP,  vir^  are  actg  Qf  war^  consequently  not  to  be  done  in  a  neutral  coun- 
try ;  and  whoever  should  permit  them,  would  depart  from  the 
line  of  neutrality,  by  favouring  one  of  the  parties.  But  I  here 
speak  of  prisoners  and  spoil  not  yet  perfectly  in  the  enemy's 
power,  and  whose  capture  is,  as  it  were,  not  yet  fully  com- 
pleted.    A  flying  party,  for  instance,  cannot  make  use  of  a 
neighbouring  and  neutral  country  as  a  place  of  deposit  to  se- 
cure their  prisoners  and  spoil.      To  permit  this,  would  be 
giving  countenance  and  support  to  their  hostilities.     When 
the  capture  is  completed,  and  the  booty  absolutely  in  the 
enemy's  power,  no  inquiry  is  made  how  he  came  by  such 
effects,  and  he  may  dispose  of  them  in  a  neutral  country.     A 
privateer  carries  his  prize  into  a  neutral  port,  and  there  freely 
[  345  ]  sells  it ;  but  he  cannot  land  his  prisoners  there,  for  the  pur- 
pose of  keeping  them  in  confinement,  because  the  detention 
and  custody  of  prisoners  of  war  is  a  continuation  of  hostilities, 
g  133.  Neu-      On  the  other  hand,  it  is  certain  that,  if  my  neighbour  af- 
trai  country  for(}s  a  retreat  to  my  enemies,  when  defeated  and  too  much 
a°retoeaf to*  weakened  to' escape  me,  and  allows  them  time  to  recover,  and 
troops,  that  watch  a  favourable  opportunity  of  making  a  second  attack  on 
they  may     my  territories,  this  conduct,  so  prejudicial  to  my  safety  and 
again  attack  interests,  would  be  incompatible  with  neutrality.  If,  therefore, 
my  enemies,  on  suffering  a  discomfiture,  retreat  into  his  coun- 
try, although  charity  will  not  allow  him  to  refuse  them  permis- 
sion to  pass  in  security,  he  is  bound  to  make  them  continue 
their  march  beyond  his  frontiers  as  soon  as  possible,  and  not 
suffer  them  to  remain  in  his  territories  on  the  watch  for  a  con- 
venient opportunity  to  attack  me  anew ;  otherwise  he  gives 
me  a  right  to  enter  his  country  in  pursuit  of  them.  Such  treat- 
ment is  often  experienced  by  nations  that  are  unable  to  com- 
mand respect.     Their  territories  soon  become  the  theatre  of 
war ;  armies  march,  encamp,  and  fight  in  it,  as  in  a  country 
open  to  all  comers. 

g  134.  Con-     Troops  to  whom  a  passage  is  granted  are  not  to  occasion 

db«  * t0  d  b   *^e  ^eas*  damage  in  the  country ;  they  are  to  keep  to  the  pub- 

7  lie  roads,  and  not  enter  the  possessions  of  private  persons, — 

chap.  i.  s.  16.  {  The  Ann,  1  Gall.  Rep.  62. }  allowed  to  originate  on  neutral  ground, 
And  Professor  Marten  observes,  that  and  explains  and  elucidates  what  pre- 
when  two  vessels,  the  enemies  of  eaofc  paratory  acts  of  warfare  there  ought, 
other,  meet  in  a  neutral  port,  or  where  or  ought  not,  to  be  tolerated ;  and  see 
one  pursues  the  other  into  such  port,  not  1  Chitty's  Com.  L.  441  to  444.  So 
only  must  they  refrain  from  all  hostili-  we  have  seen  that  even  a  sentence 
ties  while  they  remain  there,  but  should  of  condemnation  of  ship  or  goods  as 
one  set  sail,  the  other  must  not  sail  in  prize  cannot  legally  take  place  in  a 
less  than  twenty-four  hours  after.  Mar-  neutral  country.  Ante,  and  Flad  Oyen, 
ten's  L.  Nat  b.  viii.  c.  vi.  s.  6.  Sir  W.  1  Rob.  Rep.  115;  8  T.  R.  270;  Atche- 
Scott,  in  the  Twee  Gcbroeders,  3  Rob.  son's  Rep.  8,  note  9;  and  see  Have- 
Hep.  162—336 ;  and  the  Anna,  5  Rob.  loch  v.  Rockwood,  Atcheson's  Rep.  33, 
Rep.  373,  observes,  that  no  proximate  43. — C. 
acts  of  war  are  in  any  manner  to  be 
452 


OF    NEUTRALITY,    ETC.  345 

to  observe  the  most  exact  discipline,  and  punctually  pay  for   BOOK  m. 
everything  with  which  the  inhabitants  supply  them.     And  if  CHAF-  Tnv 
the  licentiousness  of  the  soldiers,  or  the  necessity  of  certain  tro°Ps  Pa8S- 
operations,    as    encamping   or   intrenching,  has  caused   anj  ^neutral^ 
damage,  their  commander  or  their  sovereign  is  bound  to  makecountry. 
reparation.     All  this  requires  no  proof.     What  right  have  an 
army  to  injure  a  country,  when  the  most  they  could  require 
was  an  innocent  passage  through  it  ? 

There  can  be  no  reason  why  the  neutral  state  should  not 
stipulate  for  a  sum  of  money,  as  an  indemnification  for  certain 
damages  which  it  would  be  difficult  to  estimate,  and  for  the 
inconveniences  naturally  resulting  from  the  passage  of  an 
army.  But  it  would  be  scandalous  to  sell  the  very  grant  of 
passage, — nay,  even  unjust,  if  the  passage  be  attended  with 
no  damage,  since,  in  that  case,  the  permission  is  due.  As  to 
the  rest,  the  sovereign  of  the  country  is  to  take  care  that  the 
compensation  be  paid  to  the  parties  who  have  suffered  the 
damage ;  for  no  right  authorizes  him  to  reserve  for  his  own 
use  what  is  given  for  their  indemnification.  It  is,  indeed,  too 
often  the  case,  that  the  weak  sustain  the  loss,  and  the  power- 
ful receive  the  compensation. 

Finally,  as  we  are  not  bound  to  grant  even  an  innocent  ?  135.   A 
passage,  except  for  just  causes,  we  may  refuse  it  to  him  who  Passase  ™&y 
requires  it  for  a  war  that  is  evidently  unjust, — as,  for  instance,  for7war 
to  invade  a  country  without  any  reason,  or  even  colourable  evidently 
pretext.     Thus  Julius  Caesar  denied  a  passage  to  the  Helvetii,  unjust, 
who  were  quitting  their  country  in  order  to  conquer  a  better. 
I  conceive,  indeed,  that  policy  had  a  greater  share  in  his  re- 
fusal than  the  love  of  justice ;  but,  in  short,  justice  authorized 
him  on  that  occasion  to  obey  the  dictates  of  prudence.     A 
sovereign  who  is  in  a  condition  to  refuse  without  fear,  should 
doubtless  refuse  in  the  case  we  now  speak  of.     But  if  it  would 
be  dangerous  for  him  to  give  a  refusal,  he  is  not  obliged  to  [  346  ] 
draw  down  the  impending  evil  on  his  own  head  for  the  sake  of 
averting  it  from  that  of  his  neighbour  :  nay,  rashly  to  hazard 
the  quiet  and  welfare  of  his  people,  would  be  a  very  great 
breach  of  his  duty. 


453 


346  OF  THE  RIGHTS    OF  NATIONS   IN  WAR. 


BOOK   III. 
CHAP.   Till. 


CHAP  VIII. 

OF   THE   RIGHTS   OF   NATIONS   IN  WAK, — AND,  FIRST,  OF  WHAT 

WE  HAVE  A  RIGHT  TO  DO,  AND  WHAT  WE  ARE  ALLOWED  TO 
DO  TO  THE  ENEMY'S  PERSON,  IN  A  JUST  WAR.  (161) 

f  136.    Ge-      WHAT  we  have  hitherto  said,  concerns  the  right  of  making 
norai  prin-   war : — ]et  us  now  proceed  to  those  rights  which  are  to  be  re- 
cipies  of  thegpected  during  the  war  itself,  and  to  the  rules -which  nations 
ajainst  an    should  reciprocally  observe,  even  when  deciding  their  differ- 
enemy  in  a  cnces  by  arms.     Let  us  begin  by  laying  down  the  rights  of  a 
just  war.      nation  engaged  in  a  just  war :  let  us  see  what  she  is  allowed 
to  do  to  her  enemy.     The  whole  is  to  be  deduced  from  one 
single  principle, — from  the  object  of  a  just  war :  for,  when 
the  end  is  lawful,  he  who  has  a  right  to  pursue  that  end  has, 
of  course,  a  right  to  employ  all  the  means  which  are  necessary 
for  its  attainment.     The  end  of  a  just  war  is  to  avenge  or  pre- 
vent injury  (§  28) — that  is  to  say,  to  obtain  justice  by  force, 
when  not  obtainable  by  any  other  method, — to  compel  an  un- 
just adversary  to  repair  an  injury  already  done,  or  give  us 
securities  against  any  wrong  with  which  we  are  threatened  by 
him.     As  soon,  therefore,  as  we  have  declared  war,  we  have 
a  right  to  do  against  the  enemy  whatever  we  find  necessary 
for  the  attainment  of  that  end, — for  the  purpose  of  bring- 
ing him  to  reason,  and  obtaining  justice  and  security  from 
him. 

$  137.  Dif-  The  lawfulness  of  the  end  does  not  give  us  a  real  right  to 
ference  be-  any  thing  further  than  barely  the  means  necessary  for  the  at- 
w7ha™haat  tainment  of  that  end-  Whatever  we  do  beyond  that,  is  repro- 
right  to  do  Da^ed  by  the  law  of  nature,  is  faulty,  and  condemnable  at  the 
and  what  is  tribunal  of  conscience.  Hence  it  is  that  the  right  to  such  or 
barely  ai-  such  acts  of  hostility  varies  according  to  circumstances.  What 


lowed  to  be  js  jusj.  an(j  perfectly  innocent  in  war,  in  one  particular  situa- 
impunity      ^on>  *s  no*  always  so  on  other  occasions.     Right  goes  hand 


done  with 


between       in  hand  with  necessity  and  the  exigency  of  the  case,  but  never 

enemies.      exceeds  them. 

But  as  it  is  very  difficult  always  to  form  a  precise  judgment 
of  what  the  present  case  requires,  and  as,  moreover,  it  belongs 
to  each  nation  to  judge  of  what  her  own  particular  situation 
authorizes  her  to  do  (Prelim.  §  16) — it  becomes  absolutely 
necessary  that  nations  should  reciprocally  conform  to  general 

[  347  ]  rules  on  this  subject.  Accordingly,  whenever  it  is  certain 
and  evident  that  such  a  measure,  such  an  act  of  hostility,  is 
necessary,  in  general,  for  overpowering  the  enemy's  resist- 

(161)  See,  in  general,  the  Rights  of     Commercial  Law,  377  to  437;  and  Chit- 
War  ;  Grotius,  ch.  vi. ;   and  1  Chitty's    ty's  Law  of  Nations,  per  tot.— C. 
454 


OF  THE   EIGHTS   OF  NATIONS   IN  WAK.  347 

ance,  and  attaining  the  end  of  a  lawful  war, — that  measure,  BOOK  m. 
thus  viewed  in  a  general  light,  is,  by  the  law  of  nations,  CHAP-  Ym- 
deemed  lawful  in  war,  and  consistent  with  propriety,  although 
he  who  unnecessarily  adopts  it,  when  he  might  attain  his  end 
by  gentler  methods,  is  not  innocent  before  God  and  his  own 
conscience.  In  this  lies  the  difference  between  what  is  just, 
equitable,  irreprehensible  in  war,  and  what  is  only  allowed 
between  nations,  and  suffered  to  pass  with  impunity.  The 
sovereign  who  would  preserve  a  pure  conscience,  and  punctu- 
ally discharge  the  duties  of  humanity,  ought  never  to  lose 
sight  of  what  we  already  have  more  than  once  observed, — 
that  nature  gives  him  no  right  to  make  war  on  his  fellow-men, 
except  in  cases  of  necessity,  and  as  a  remedy,  ever  disagree- 
able, though  often  necessary,  against  obstinate  injustice  or 
violence.  If  his  mind  is  duly  impressed  with  this  great  truth, 
he  will  never  extend  the  application  of  the  remedy  beyond  its 
due  limits,  and  will  be  very  careful  not  to  render  it  more 
harsh  in  its  operation,  and  more  fatal  to  mankind,  than  is 
requisite  for  his  own  security  and  the  defence  of  his  rights. 

Since  the  object  of  a  just  war  is  to  repress  injustice  and  g  138.   The 
violence,  and  forcibly  to  compel  him  who  is  deaf  to  the  voice  right  to 
of  justice,  we  have  a  right  to  put  in  practice,  against  the  ^^enban 
enemy,  every  measure  that  is  necessary  in  order  to  weaken  everyjustifi- 
him,  and  disable  him  from  resisting  us  and  supporting  his  able  me- 
injustice ;  and  we  may  choose  such  methods  as  are  the  most  ^od. 
efficacious  and  best  culculated  to  attain  the  end  in  view,  pro- 
vided they  be  not  of  an  odious  kind,  nor  unjustifiable  in  them- 
selves, and  prohibited  by  the  law  of  nature. 

The  enemy  who  attacks  me  unjustly,  gives  me  an  undoubted  g  139.    The 
right  to  repel  his  violence;  and  he  who  takes  up  arms  torightover 
oppose  me  when  I  demand  only  my  right,  becomes  himself  the  enemJ'8 
the  real  aggressor  by  his  unjust  resistance :  he  is  the  first per 
author  of  the  violence,  and  obliges  me  to  employ  forcible 
means  in  order  to  secure  myself  against  the  wrong  which  he 
intends  to  do  me  either  in  my  person  or  my  property.    If  the 
forcible  means  I  employ  produce  such  effect  as  even  to  take 
away  his  life,  he  alone  must  bear  the  whole  blame  of  that 
misfortune :  for,  if  I  were  obliged  to  submit  to  the  wrong 
rather  than  hurt  him,  good  men  would  soon  become  the  prey 
of  the  wicked.     Such  is  the  origin  of  the  right  to  kill  our 
enemies  in  a  just  war.     When  we  find  gentler  methods  insuf- 
ficient to  conquer  their  resistance  and  bring  them  to  terms, 
we  have  a  right  to  put  them  to  death.     Under  the  name  of 
enemies,  as  we  have  already  shown,  are  to  be  comprehended, 
not  only  the  first  author  of  the  war,  but  likewise  all  those  who 
join  him,  and  who  fight  in  support  of  his  cause. 

But  the  very  manner  in  which  the  right  to  kill  our  enemies  \  HO. 
is  proved,  points  out  the  limits  of  that  right.    On  an  enemy's  Li.mitf  of 
submitting  and  laying  down  his  arms,  we  cannot  with  justice this  right 
take  away  his  life.     Thus,  in  a  battle,  quarter  is  to  be  given 

455 


348 


OF    THE   RIGHTS    OF    NATIONS   IN   WAR. 


§  wi.  A 
particular 
case,  in 


refused. 


\  142. 
prisais. 


to  those  who  lay  down  their  arms  ;  and,  in  a  siege,  a  garrison 
Oflfering  t0  capitulate  are  never  to  be  refused  their  lives.  The 
humanity  with  which  most  nations  in  Europe  carry  on  their 

,    ,  i  JJTI- 

wars  a*  Presen^  cannot  be  too  much  commended.  If,  some- 
times,  in  the  heat  of  action,  the  soldier  refuses  to  give  quarter, 
it  is  always  contrary  to  the  inclination  of  the  officers,  who 
eagerly  interpose  to  save  the*  lives  of  such  enemies  as  have 
laid  down  their  arms.* 

There  is,  however,  one  case  in  which  we  may  refuse  to 
spare  the  life  of  an  enemy  who  surrenders,  or  to  allow  any 
capitulation  to  a  town  reduced  to  the  last  extremity.  It  is, 
wnen  *na*  enemy  has  been  guilty  of  some  enormous  breach 
of  the  law  of  nations,  and  particularly  when  he  has  violated 
the  laws  of  war.  This  refusal  of  quarter  is  no  natural  con- 
sequence of  the  war,  but  a  punishment  for  his  crime,  —  a  pu- 
nishment which  the  injured  party  has  a  right  to  inflict.  But, 
in  order  that  it  be  justly  inflicted,  it  must  fall  on  the  guilty. 
When  we  are  at  war  with  a  savage  nation,  who  observe  no 
rules,  and  never  give  quarter,  we  may  punish  them  in  the 
persons  of  any  of  their  people  whom  we  take,  (these  belonging 
to  the  number  of  the  guilty,)  and  endeavour,  by  this  rigorous 
proceeding,  to  force  them  to  respect  the  laws  of  humanity. 
But,  wherever  severity  is  not  absolutely  necessary,  clemency 
becomes  a  duty.  Corinth  was  utterly  destroyed  for  having 
violated  the  law  of  nations  in  the  person  of  the  Roman  am- 
bassadors. That  severity,  however,  was  reprobated  by  Cicero 
and  other  great  men.  He  who  has  even  the  most  just  cause 
to  punish  a  sovereign  with  whom  he  is  in  enmity,  will  ever 
incur  the  reproach  of  cruelty,  if  he  causes  the  punishment  to 
fall  on  his  innocent  subjects.  There  are  other  methods  of 
chastising  the  sovereign,  —  such  as  depriving  him  of  some  of 
his  rights,  taking  from  him  towns  and  provinces.  The  evil 
which  thence  results  to  the  nation  at  large,  is  the  consequence 
of  that  participation  which  cannot  possibly  be  avoided  by 
those  who  unite  in  political  society. 

This  leads  us  to  speak  of  a  kind  of  retaliation  sometimes 
practised  in  war,  under  the  name  of  reprisals.  If  the  hostile 
general  has,  without  any  just  reason,  caused  some  prisoners 
to  be  hanged,  we  hang  an  equal  number  of  his  people,  and  of 
the  same  rank,  —  notifying  to  him  that  we  will  continue  thus 


*  From  several  passages  of  Grotius's 
History  of  the  Disturbances  in  the 
Low  Countries,  it  appears  that  the  war 
between  the  Dutch  and  Spaniards  was 
carried  on  with  unrelenting  cruelty  at 
sea,  although  the  parties  had  agreed  to 
observe  the  usual  rules  of  moderation 
on  land.  Intelligence  being  received 
by  the  confederate  states,  that  the  Spa- 
niards  had,  by  the  advice  of  Spinola, 
embarked  at  Lisbon  a  body  of  troops 


destined  for  Flanders,  they  despatched 
a  squadron  to  wait  for  them  in  the 
strait  of  Calais,  with  orders  to  drown 
without  mercy  every  soldier  that  was 
taken;  and  the  order  was  punctually 
executed.—  Book  xiv.  p.  550.—  Edit.  A.D. 
3797. 

(162)  As  to  reprisals  and  letters  of 
marque  in  general,  see  ante,  b.  ii.  ch. 
xviii.  §  334.—  C. 


OF   THE   EIGHTS    OF   NATIONS   IN   WAR.  483 

to  retaliate,  for  the  purpose  of  obliging  him  to  observe  the  BOOK  m. 
laws  of  war.  It  is  a  dreadful  extremity  thus  to  condemn  a  ,CHAP-  YI?-. 
prisoner  to  atone,  by  a  miserable  death,  for  his  general's 
crime :  and  if  we  had  previously  promised  to  spare  the  life 
of  that  prisoner,  we  cannot,  without  injustice,  make  him  the  [  349  ] 
subject  of  our  reprisals.*  Nevertheless,  as  a  prince,  or  his 
general,  has  a  right  to  sacrifice  his  enemy's  lives  to  his  own 
safety  and  that  of  his  men, — it  appears,  that,  if  he  has  to  do 
with  an  inhuman  enemy,  who  frequently  commits  such  enor- 
mities, he  is  authorized  to  refuse  quarter  to  some  of  the  pri- 
soners he  takes,  and  to  treat  them  as  his  people  have  been 
treated.f  But  Scipio's  generosity  is  rather  to  be  imitated : 
— that  great  man,  having  reduced  some  Spanish  princes,  who 
had  revolted  against  the  Romans,  declared  to  them  that,  on  a 
breach  of  their  faith,  he  would  not  call  the  innocent  hostages 
to  an  account,  but  themselves :  and  that  he  would  not  avenge 
it  on  an  unarmed  enemy,  but  on  those  who  should  be  found 
in  arms.!  Alexander  the  Great,  having  cause  of  complaint 
against  Darius  for  some  malpractices,  sent  him  word,  that  if 
he  continued  to  make  war  in  such  a  manner,  he  would  proceed 
to  every  extremity  against  him,  and  give  him  no  quarter.§  It 
is  thus  an  enemy  who  violates  the  laws  of  war  is  to  be  checked, 
and  not  by  causing  the  penalty  due  to  his  crime  to  fall  on 
innocent  victims. 

How  could  it  be  conceived,  in  an  enlightened  age,  that  it  is  §  143.  Whe- 
lawful  to  punish  with  death  a  governor  who  has  defended  his ther  a  go~ 
town  to  the  last  extremity,  or  who,  in  a  weak  place,  has  had  t^0^ 
the  courage  to  hold  out  against  a  royal  army  ?     In  the  last  be  punished 
century,  this  notion  still  prevailed ;  it  was  looked  upon  as  one  with  death 
of  the  laws  of  war,  and  is  not,  even  at  present,  totally  exploded.  fof an  °k- 
What  an  idea !  to  punish  a  brave  man  for  having  performed  f™*^ 
his  duty !     Very  different  were  the  principles  of  Alexander 
the  Great,  when  he  gave  orders  for  sparing  some  Milesians, 
on  account  of  their  courage  and  fidelity. \\     "As  Phyton  was 
led  to  execution,  by  order  of  Dionysius  the  tyrant,  for  having 
obstinately  defended  the  town  of  Rhegium,  of  which  he  was 
governor,  he  cried  out,  that  he  was  unjustly  condemned  to  die 
for  having  refused  to  betray  the  town,  and  that  heaven  would 

*  In  the  French,  we  here  find  (ap-  prisoner,  in  case  of  victory  declaring  on 

parently  very  much  out  of  place)  a  ver-  their  side.   He  spared  Adeimantus  alone, 

batim  repetition  of  the  long  note  which  who  had  opposed  that  infamous  reso- 

has  already  appeared  in   page   286. —  lution.     Xenoph.  Hist.  Graec.  lib.  ii.  cap. 

Edit.  A.  D.  1797.  i.— Edit  A.  D.  1797. 

f  Lysander,    having     captured    the  J  Neque  se  in  obsides  innoxios,  sed 

Athenian    fleet,   put  the    prisoners    to  in  ipsos,  si  defecerint,  saeviturum ;  nee 

death,  on  account  of  various  cruelties  ab  inermi,  sed  ab  armato  hoste,  poenas 

practised  by  the  Athenians  during  the  expetiturum. — Tit.  Liv.  lib.  xxviii. 

course  of   the  war,  but  principally  on  \  Quint  Curt.  lib.  iv.  cap.  i.  and  ii. 

account    of    the    barbarous    resolution  ||  Arrian.  de  Exped.  Alexand.  lib.  L 

which  they  were  known  to  have  adopt-  cap.  xx. 
ed,  of  cutting  off  the  right  hand  of  every 

53                              20  457 


349  OF   THE    RIGHTS    OF   NATIONS   IN   WAR. 

BOOK  in.  soon  avenge  his  death."  Diodorus  Siculus  terms  this  "  an 
CHAP.  YIII.  unjust  punishment."*  It  is  vain  to  object,  that  an  ohstinate 
defence,  especially  in  a  weak  place,  against  a  royal  army,  only 
causes  a  fruitless  effusion  of  blood.  Such  a  defence  may  save 
the  state,  by  delaying  the  enemy  some  days  longer  ;  and,  be- 
sides, courage  supplies  the  defects  of  the  fortifications. f  The 
[  350  ]  chevalier  Bayard  having  thrown  himself  into  Mezieres,  de- 
fended it  with  his  usual  intrepidity,!  and  proved  that  a  brave 
man  is  sometimes  capable  of  saving  a  place  which  another 
would  not  think  tenable.  The  history  of  the  famous  siege  of 
Malta  is  another  instance  how  far  men  of  spirit  may  defend 
themselves,  when  thoroughly  determined.  How  many  places 
have  surrendered,  which  might  still  have  arrested  the  enemy's 
progress  for  a  considerable  time,  obliged  him  to  consume  his 
strength  and  waste  the  remainder  of  the  campaign,  and  even 
finally  saved  themselves,  by  a  better-supported  and  more  vigor- 
ous defence !  In  the  last  war,  whilst  the  strongest  places 
in  the  Netherlands  opened  their  gates  in  a  few  days,  the  va- 
liant general  Leutrum  was  seen  to  defend  Coni  against  the 
utmost  efforts  of  two  powerful  armies, — to  hold  out,  in  so  in- 
different a  post,  forty  days  from  the  opening  of  the  trenches, 
— and,  finally,  to  save  the  town,  and,  together  with  it,  all 
Piemont.  If  it  be  urged,  that,  by  threatening  a  commandant 
with  death,  you  may  shorten  a  bloody  siege,  spare  your  troops, 
and  make  a  valuable  saving  of  time, — my  answer  is,  that  a 
brave  man  will  despise  your  menace,  or,  incensed  by  such  ig- 
nominious treatment,  will  sell  his  life  as  dearly  as  he  can, — 
will  bury  himself  under  the  ruins  of  his  fort,  and  make  you 
pay  for  your  injustice.  But,  whatever  advantage  you  might 
promise  yourself  from  an  unlawful  proceeding,  that  will  not 
warrant  you  in  the  use  of  it.  The  menace  of  an  unjust  pun- 
ishment is  unjust  in  itself:  it  is  an  insult  and  an  injury.  But, 
above  all,  it  would  be  horrible  and  barbarous  to  put  it  in  execu- 
tion ;  and,  if  you  allow  that  the  threatened  consequences  must 
not  be  realized,  the  threat  is  vain  and  ridiculous.  Just  and 

*  Lib.  xiv.  cap.  cxiii.,  quoted  by  Gro-  ill-fortified  place  against  a  royal  army, 

tins,  lib.  iii.  cap.  ii.  g  xvi.  n.  v.  and  when,  refusing  to  accept  of  reason- 

j-  The   false  maxim  which   formerly  able   conditions  offered  to    them,  they 

prevailed  on  this  subject,  is  noticed  in  undertake  to  arrest  the   progress  of  a 

the  relation  of  the  battle   of  Mussel-  power  which  they  are  unable  to  resist." 

burgh  (De  Thou,  vol.  i.  p.  287).     "  The  — Pursuant  to  that  maxim,   Caesar  an- 

general  (the  duke  of  Somerset),  the  re-  swered    the    Aduatici    that    he   would 

gent  of  England,  was  on  this  occasion  spare   their   town,  if  they  surrendered 

much  admired  for  his  clemency,  which  before  the  battering-ram  touched  their 

induced  him  to   spare  the  lives  of  the  walls ;  and  the  duke  of  Alva  strongly 

besieged  (the   garrison   of  a  castle  in  blamed    prosper    Colonna    for    having 

Scotland,)  notwithstanding  that  ancient  granted   terms    of  capitulation    to  the 

maxim  in  war,  which  declares   that  a  garrison  of  a  castle,  who  had  refused 

weak  garrison  forfeit  all  claim  to  mercy  to  treat  of  a  surrender  until  the  cannon 

on   the   part  of  the  conqueror,  when,  had  been  employed  against  them. — Edit, 

with  more  courage  than  prudence,  they  A.  D.  1797. 
obstinately  persevere  in  defending   an        {  See  his  life. 


OF  THE  RIGHTS   OP  NATIONS  IN  WAR.  350 

honourable  means  may  be  employed  to  dissuade  a  governor    BOOK  m. 
from  ineffectually  persevering  to  the  last  extremity ;  and  such  CHAP,  ym. 
is  the  present  practice  of  all  prudent  and  humane  generals. 
At  a  proper  stage  of  the  business,  they  summon  a  governor  to 
surrender ;  they  offer  him  honourable  and  advantageous  terms 
of  capitulation, — accompanied  by  a  threat,  that,  if  he  delays 
too  long,  he  will  only  be  admitted  to  surrender  as  a  prisoner 
of  war,  and  at  discretion.     If  he  persists,  and  is  at  length  [  351  ] 
forced  to  surrender  at  discretion, — they  may  then  treat  both 
himself  and  his  troops  with  all  the  severity  of  the  law  of  war. 
But  that  law  can  never  extend  so  far  as  to  give  a  right  to  take 
away  the  life  of  an  enemy  who  lays  down  his  arms  (§  140), 
unless  he  has  been  guilty  of  some  crime  against  the  con-         , 
queror  (§  141). 

Resistance  carried  to  extremity  does  not  become  punishable 
in  a  subaltern,  except  on  those  occasions  only  when  it  is  evi- 
dently fruitless.  It  is  then  obstinacy,  and  not  firmness  or 
valour  : — true  valour  has  always  a  reasonable  object  in  view. 
Let  us,  for,  instance,  suppose  that  a  state  has  entirely  sub- 
mitted to  the  conqueror's  arms,  except  one  single  fortress, — 
that  no  succour  is  to  be  expected  from  without, — no  neighbour, 
no  ally,  concerns  himself  about  saving  the  remainder  of  that 
conquered  state : — on  such  an  occasion,  the  governor  is  to  be 
made  acquainted  with  the  situation  of  affairs,  and  summoned 
to  surrender ;  and  he  may  be  threatened  with  death  in  case 
of  his  persisting  in  a  defence  which  is  absolutely  fruitless,  and 
which  can  only  tend  to  the  effusion  of  human  blood.*  Should 
this  make  no  impression  on  him,  he  deserves  to  suffer  the  pu- 
nishment with  which  he  has  been  justly  threatened.  I  suppose 
the  justice  of  the  war  to  be  problematical,  and  that  it  is  not  an 
insupportable  oppression  which  he  opposes  :  for  if  this  gover- 
nor maintains  a  cause  that  is  evidently  justr — if  he  fights  to 
save  his  country  from  slavery, — his  misfortune  will  be  pitied ; 
and  every  man  of  spirit  will  applaud  him  for  gallantly  perse- 
vering to  the  last  extremity,  and  determining  to  die  free. 

Fugitives  and  deserters,  found  by  the  victor  among  his  ene-  %  144.    Fn- 
mies,  are  guilty  of  a  crime  against  him  ;  and  he  has  undoubt-  gitives  and 
edly  a  right  to  put  them  to  death.    But  they  are  not  properly  desertors- 
considered  as   enemies:  they  are  rather  perfidious  citizens 

*  But   it   is   not   lawful    to    employ  in    Louis's   hands)    should    be    put   to 

menaces  of  every  kind  in  order  to  in-  death  in  his  sight.     Philip  replied  that 

duee  the  governor  or  commandant  of  a  he  would  feel  the  most  poignant  regret 

town   to   surrender.     There   are   some,  to  lose  his  father,  but  that  his  honour 

against  which  nature  revolts  with  hor-  was  still   dearer  to  him,  and  that   ho 

ror.     Louis    the    Eleventh,    being    en-  was     too    well     acquainted    with    the 

gaged  in   the   siege   of  St.  Omer,  and  king's    disposition,    to   apprehend   that 

incensed   at  the  long  resistance  he  ex-  he  would  disgrace  himself  by  the  per- 

perienced,  informed  the  governor,  Phi-  petration    of   so   barbarous    a   deed. — 

lip,  son  of  Antony,  the  Bastard  of  Bur-  Hist,   of    Louis    XL  book   viii.— Edit, 

gundy,  that  if  he  did  not  surrender  the  A.D.  1797. 
place,  his  father  (who  was  a  prisoner 

459 


351  OF   THE   RIGHTS   OF   NATIONS   IN  WAR. 

BOOK  in.  traitors  to  their  country ;  and  their  enlistment  with  the  enemy 
CHAP.  Tin.  cannot  obliterate  that  character,  or  exempt  them  from  the 
punishment  they  have  deserved.  At  present,  however,  deser- 
tion being  unhappily  too  common,  the  number  of  the  delin- 
quents renders  it  in  some  measure  necessary  to  show  clemency ; 
and,  in  capitulations,  it  is  usual  to  indulge  the  evacuating 
garrison  with  a  certain  nuritber  of  covered  wagons,  in  which 
they  save  the  deserters. 

\  145.  Wo-  Women,  children,  feeble  old  men,  and  sick  persons,  come 
men,  chil-  under  the  description  of  enemies  (§§  70 — 72) ;  and  we  have 
^ed'  and  cei>tain  rights  over  them,  inasmuch  as  they  belong  to  the 
sfck.'  ^  nation  with  whom  we  are  at  war,  and  as,  between  nation  and 
[  352  ]  nation,  all  rights  and  pretensions  affect  the  body  of  the  society, 
together  with  all  its  members  (Book  II.  §§  81,  82—344).  But 
these  are  enemies  who  make  no  resistance ;  and  consequently 
we  have  no  right  to  maltreat  their  persons  or  use  any  violence 
against  them,  much  less  to  take  away  their  lives  (§  140).  This 
is  so  plain  a  maxim  of  justice  and  humanity,  that  at  present 
every  nation  in  the  least  degree  civilized,  acquiesces  in  it. 
If,  sometimes,  the  furious  and  ungovernable  soldier  carries  his 
brutality  so  far  as  to  violate  female  chastity,  or  to  massacre 
women,  children,  and  old  men,  the  officers  lament  those  ex- 
cesses ;  they  exert  their  utmost  efforts  to  put  a  stop  to  them  ; 
and  a  prudent  and  humane  general  even  punishes  them  when- 
ever he  can.  But,  if  the  women  wish  to  be  spared  altogether, 
they  must  confine  themselves  to  the  occupations  peculiar  to 
their  own  sex,  and  not  meddle  with  those  of  men,  by  taking 
up  arms.  Accordingly,  the  military  law  of  the  Switzers,  which 
forbids  the  soldier  to  maltreat  women,  formally  excepts  those 
females  who  have  committed  any  acts  of  hostility.* 
g  146.  cier-  The  like  may  be  said  of  the  public  ministers  of  religion,  of 
gy,  men  of  men  of  letters,  and  other  persons  whose  mode  of  life  is  very 
letters,  Ac.  remote  from  military  affairs : — not  that  these  people,  nor  even 
the  ministers  of  the  altar,  are,  necessarily,  and  by  virtue  of 
their  functions,  invested  with  any  character  of  inviolability, 
or  that  the  civil  law  can  confer  it  on  them  with  respect  to  the 
enemy :  but,  as  they  do  not  use  force  or  violence  to  oppose 
him,  they  do  not  give  him  a  right  to  use  it  against  them. 
Among  the  ancient  Romans,  the  priests  carried  arms :  Julius 
Caesar  himself  was  sovereign  pontiff: — and  among  the  Chris- 
tians, it  has  been  no  rare  thing  to  see  prelates,  bishops,  and 
cardinals  buckle  on  their  armor,  and  take  the  command  of 
armies.  From  the  instant  of  their  doing  so,  they  subjected 
themselves  to  the  common  fate  of  military  men.  While  deal- 
ing out  their  blows  in  the  field  of  battle,  they  did  not,  it  is  to 
be  presumed,  lay  claim  to  inviolability. 

g  147.  Pea-     Formerly,  every  one  capable  of  carrying  arms  became  a 
•ants,  and,    soldier  when  his  nation  was  at  war,  and  especially  when  it 

*  See  Simler,  de  Repub.  Helvet. 
460 


OF  THE  EIGHTS  OF  NATIONS  IN  WAR.  352 

was    attacked.      Grotius,  however,*  produces   instances   of    BOOK  m. 
several  nations  and  eminent  commanders,  f  who  spared  the  CHAP'  ™^~ 
peasantry,  in  consideration  of  the  immediate  usefulness  of  in  general, 
their  labours.^     At  present,  war  is   carried  on   by  regular a11  who  do 
troops :  the  people,  the  peasants,  the  citizens,  take  no  part  °°]^garry 
in  it,  and  generally  have  nothing  to  fear  from  the  sword  of  a" 
the  enemy.     Provided  the  inhabitants  submit  to  him  who  is 
master  of  the  country,  pay  the  contributions  imposed,  and  [  353  ] 
refrain  from  all  hostilities,  they  live  in  as  perfect  safety  as  if 
they  were  friends :  they  even  continue  in  possession  of  what 
belongs  to  them :  the  country  people  come  freely  to  the  camp 
to  sell  their  provisions,  and  are  protected,  as  far  as  possible, 
from  the  calamities  of  war.     A  laudable  custom,  truly  worthy 
of  those  nations  who  value  themselves  on  their  humanity, 
and  advantageous  even  to  the  enemy  who  acts  with  such 
moderation.     By  protecting  the  unarmed  inhabitants,  keeping 
the  soldiery  under  strict  discipline,  and  preserving  the  coun- 
try, a  general  procures  an  easy  subsistence  for  his  army,  and 
avoids  many  evils  and  dangers.     If  he  has  any  reason  to  mis- 
trust the  peasantry  and  the  inhabitants  of  the  towns,  he  has 
a  right  to  disarm  them,  and  to  require  hostages  from  them : 
and  those  who  wish  to  avoid  the  calamities  of  war,  must  sub- 
mit to  the  laws  which  the  enemy  thinks  proper  to  impose  on 
them. 

But  all  those  enemies  thus  subdued  or  disarmed,  whom  the  ?  148.  The 
principles  of  humanity  oblige  him  to  spare, — all  those  persons  rish* ' 
belonging  to  the  opposite  party,  (even  the  women  and  chil-  ™ne^s0f "" 
dren,)  he  may  lawfully  secure  and  make  prisoners,  either  with  war. 
a  view  to  prevent  them  from  taking  up  arms  again,  or  for  the 
purpose  of  weakening  the  enemy  (§  138),  or,  finally,  in  hopes 
that,  by  getting  into  his  power  some  woman  or  child  for  whom 
the  sovereign  has  an  affection,  he  may  induce  him  to  accede 
to  equitable  conditions  of  peace,  for  the  sake  of  redeeming 
those  valuable  pledges.  At  present,  indeed,  this  last-men- 
tioned expedient  is  seldom  put  in  practice  by  the  polished 
nations  of  Europe :  women  and  children  are  suffered  to  enjoy 
perfect  security,  and  allowed  permission  to  withdraw  wherever 
they  please.  But  this  moderation,  this  politeness,  though 
undoubtedly  commendable,  is  not  in  itself  absolutely  obliga- 
tory ;  and  if  a  general  thinks  fit  to  supersede  it,  he  cannot  be 
justly  accused  of  violating  the  laws  of  war.  He  is  at  liberty 
to  adopt  such  measures,  in  this  respect,  as  he  thinks  most 
conducive  to  the  success  of  his  affairs.  If  without  reason, 
and  from  mere  caprice,  he  refuses  to  indulge  women  with  this 
liberty,  he  will  be  taxed  with  harshness  and  brutality, — he 

*  Book  iii.  ch.  xi.  g  xi.  and  make  war  only  against  those  who 

T  Cyrus,  Belisarius,  &c.  appeared  in  arms  :— and  the   proposal 

f  Cyrus  proposed  to  the  king  of  As-    was  agreed  to.    Xenoph.  Cyrop.  lib.  v. 

Syria,  that  both  parties  should  recipro-    cap.  4. 

cally  spare  the  cultivators  of  the  soil, 

2  o  2  461 


353  OF   THE   RIGHTS    OF   NATIONS   IN  WAR. 

BOOK  in.  will  be  censured  for  not  conforming  to  a  custom  established 
CHAP.  Tin.  ky  humanity :  but  he  may  have  good  reasons  for  disregarding, 
in  this  particular,  the  rules  of  politeness,  and  even  the  sug- 
gestions of  pity.  If  there  are  hopes  of  reducing  by  famine  a 
strong  place,  of  which  it  is  very  important  to  gain  possession, 
the  useless  mouths  are  not  permitted  to  come  out.  And  in 
this  there  is  nothing  which  is  not  authorized  by  the  laws  of 
war.  Some  great  men,  however,  have,  on  occasions  of  this 
nature,  carried  their  compassion  so  far  as  to  postpone  their 
interests  to  the  motions  of  humanity.  We  have  already  men- 
tioned, in  another  place,  how  Henry  the  Great  acted  during 
the  siege  of  Paris.  To  such  a  noble  example  let  us  add  that 
of  Titus  at  the  siege  of  Jerusalem :  at  first  he  was  inclined  to 
drive  back  into  the  city  great  numbers  of  starving  wretches, 
[  354  ]  wno  came  out  of  it ;  but  he  could  not  withstand  the  compas- 
sion which  such  a  sight  raised  in  him ;  and  he  suffered  the 
sentiments  of  humanity  and  generosity  to  prevail  over  the 
maxims  of  war. . 

g  149.  A  As  soon  as  your  enemy  has  laid  down  his  arms  and  sur- 
prisoner  of  rendered  his  person,  you  have  no  longer  any  right  over  his 
be^oTto*0  life  (§140),  unless  he  should  give  you  such  right  by  some 
death.  new  attempt,  or  had  before  committed  against  you  a  crime 
deserving  death  (§  141).  It  was  therefore  a  dreadful  error 
of  antiquity,  a  most  unjust  and  savage  claim,  to  assume  a 
right  of  putting  prisoners  of  war  to  death,  and  even  by  the 
hand  of  the  executioner.  More  just  and  humane  principles, 
however,  have  long  since  been  adopted.  Charles  I.,  king  of 
Naples,  having  defeated  and  taken  prisoner  Conradin,  his 
competitor,  caused  him  to  be  publicly  beheaded  at  Naples, 
together  with  Frederic  of  Austria,  his  fellow-prisoner.  This 
barbarity  raised  a  universal  horror ;  and  Peter  III.,  king  of 
Arragon,  reproached  Charles  with  it  as  a  detestable  crime, 
and  till  then  unheard  of  among  Christian  princes.*  The 
case,  however,  was  that  of  a  dangerous  rival,  who  contended 
with  him  for  the  throne.  But  supposing  even  the  claims  of  that 
rival  were  unjust,  Charles  might  have  kept  him  in  prison  till 
he  had  renounced  them,  and  given  security  for  his  future 
behaviour. 

\  150.  How  Prisoners  may  be  secured  ;  and  for  this  purpose  they  may 
prisoners  of  ke  pu^  jnt0  confinement,  and  even  fettered,  if  there  be  reason 
to  aPPrehend  that  they  will  rise  on  their  captors,  or  make 
their  escape.  But  they  are  not  to  be  treated  harshly,  unless 
personally  guilty  of  some  crime  against  him  who  has  them  in 
his  power.  In  this  case,  he  is  at  liberty  to  punish  them : 
otherwise,  he  should  remember  that  they  are  men,  and  unfor- 
tunate, f  A  man  of  exalted  soul  no  longer  feels  any  emotions 

*  Epist  Pet.  Arrag.   apud  Petr.  de    therlands,  at    the    persuasion    of   the 

Vineis.  count  de   Fuentes,  resolved  no  longer 

f  In  1593,  the  council    of  the  Ne-    to  observe    towards  the  United    Pro- 
462 


OF   THE   RIGHTS   OF  NATIONS   IN   WAR.  354 

but  those  of  compassion  towards  a  conquered  enemy  who  has    BOOK  HI. 
submitted  to  his  arms.     Let  us,  in  this  particular,  bestow  on  ,CHAP-  YI_"' 
the  European  nations  the  praise  to  which  they  are  justly 
entitled.     Prisoners   of  war   are   seldom   ill-treated   among 
them.     We  extol  the  English  and  French  ;  we  feel  our  bosoms 
glow  with  love  for  them,  when  we  hear  the  accounts  of  the 
treatment  which  prisoners  of  war,  on  both  sides,  have  experi- 
enced from  those  generous  nations.     And  what  is  more,  by  a 
custom  which  equally  displays  the  honour  and  humanity  of 
the  Europeans,  an  officer,  taken  prisoner  in  war,  is  released 
on  his  parole,  and  enjoys  the  comfort  of  passing  the  time  of  [  355  ] 
his  captivity  in  his  own  country,  in  the  midst  of  his  family ; 
and  the  party  who  have  thus  released  him  rest  as  perfectly 
sure  of  him  as  if  they  had  him  confined  in  irons. 

Formerly,  a  question  of  an  embarrassing  nature  might  have  g  151.  Who. 
been  proposed.  When  we  have  so  great  a  number  of  pri- ther  Prison- 
soners  that  we  find  it  impossible  to  feed  them,  or  to  keep  them  ^n*t  be 
with  safety,  have  we  a  right  to  put  them  to  death  ?  or  shall  we  kept  or  fed, 
send  them  back  to  the  enemy, — thus  increasing  his  strength,  may  be  put 
and  exposing  ourselves  to  the  hazard  of  being  overpowered to  death- 
by  him  on  a  subsequent  occasion?  At  present,  the  case  is 
attended  with  no  difficulty.  Such  prisoners  are  dismissed  on 
their  parole, — bound  by  promise  not  to  carry  arms  for  a  cer- 
tain time,  or  during  the  continuance  of  the  war.  And  as  every 
commander  necessarily  has  a  power  of  agreeing  to  the  condi- 
tions on  which  the  enemy  admits  his  surrender,  the  engage- 
ments entered  into  by  him  for  saving  his  life  or  his  liberty, 
with  that  of  his  men,  are  valid,  as  being  made  within  the 
limits  of  his  powers  (§§  19,  &c.);  and  his  sovereign  cannot 
annul  them.  Of  this,  many  instances  occurred  during  the 
last  war : — several  Dutch  garrisons  submitted  to  the  condition 
of  not  serving  against  France  or  her  allies  for  one  or  two 
years:  a  body  of  French  troops  being  invested  in  Lintz, 
were  by  capitulation  sent  back  across  the  Rhine,  under  a 
restriction  not  to  carry  arms  against  the  queen  of  Hungary 
for  a  stated  time :  and  the  sovereigns  of  those  troops  re- 
spected the  engagements  formed  by  them.  But  conventions 
of  this  kind  have  their  limits,  which  consist  in  not  infringing 
the  rights  of  the  sovereign  over  his  subjects.  Thus  the 
enemy,  in  releasing  prisoners,  may  impose  on  them  the  con- 
vinces that  moderation  which  humanity  hands,  obliged  the  Spaniards  to  re-es- 
rcnders  so  necessary  in  war.  They  tablish  those  indispensable  usages, 
gave  orders  for  putting  to  death  every  which,  in  the  words  of  Virgil  [JEn.  x. 
man  who  should  be  made  prisoner,  532],  are  called  belli  eom»iercia,— the 
and,  under  the  same  penalty,  prohi-  ransom  or  exchange  of  prisoners,  and 
bited  the  payment  of  any  contributions  the  payment  of  contributions  to  avert 
to  the  enemy.  But  the  complaints  of  pillage  and  devastation.  The  ransom 
the  nobility  and  clergy,  and  still  more  of  each  prisoner  was  then  settled  at  a 
the  murmurs  of  the  military,  who  saw  month's  pay. — Grotius,  Hist,  of  Ne- 
themsclves  exposed  to  an  infamous  therlands,  book  iii. 
death  in  case  of  falling  into  the  enemy's 

463 


355  OF   THE   RIGHTS   OF   NATIONS   IN  WAR. 

BOOK  in.  dition  of  not  carrying  arms  against  him  till  the  conclusion  of 
-HAP-  YII_  the  war ;  since  he  might  justly  keep  them  in  confinement  till 
that  period :  but  he  cannot  require  that  they  shall  for  ever 
renounce  the  liberty  of  fighting  for  their  country ;  because, 
on  the  termination  of  the  war,  he  has  no  longer  any  reason 
for  detaining  them ;  and  they,  on  their  part,  cannot  enter 
into  an  engagement  absolutely  inconsistent  with  their  cha- 
racter of  citizens  or  subjects.  If  their  country  abandons 
them,  they  become  free  in  that  respect,  and  have  in  their 
turn  a  right  to  renounce  their  country. 

But  if  we  have  to  do  with  a  nation  that  is  at  once  savage, 
perfidious,  and  formidable,  shall  we  send  her  back  a  number 
of  soldiers  who  will  perhaps  enable  her  to  destroy  us  ? — When 
our  own  safety  is  incompatible  with  that  of  an  enemy — even 
of  an  enemy  who  has  submitted — the  question  admits  not  of 
a  doubt.  But  to  justify  us  in  coolly  and  deliberately  putting 
to  death  a  great  number  of  prisoners,  the  following  conditions 
are  indispensably  necessary : — 1.  That  no  promise  have  been 
made  to  spare  their  lives ;  and,  2.  That  we  be  perfectly  assured 
that  our  own  safety  demands  such  a  sacrifice.  If  it  is  at  all 
consistent  with  prudence  either  to  trust  to  their  parole,  or  to 
disregard  their  perfidy,  a  generous  enemy  will  rather  listen 
to  the  voice  of  humanity  than  to  that  of  a  timid  circumspec- 
[  356  ]  tion.  Charles  XII.,  being  encumbered  with  his  prisoners 
after  the  battle  of  Narva,  only  disarmed  them  and  set  them 
at  liberty :  but  his  enemy,  still  impressed  with  the  apprehen- 
sions which  his  warlike  and  formidable  opponents  had  excited 
in  his  mind,  sent  into  Siberia  all  the  prisoners  he  took  at 
Pultowa.  The  Swedish  hero  confided  too  much  in  his  own 
generosity :  the  sagacious  monarch  of  Russia  united,  perhaps, 
too  great  a  degree  of  severity  with  his  prudence :  but  neces- 
sity furnishes  an  apology  for  severity,  or  rather  throws  a  veil 
over  it  altogether.  When  Admiral  Anson  took  the  rich  Aca- 
pulco  galleon,  near  Manilla,  he  found  that  the  prisoners  out- 
numbered his  whole  ship's  company:  he  was  therefore  under 
a  necessity  of  confining  them  in  the  hold,  where  they  suffered 
cruel  distress.*  But  had  he  exposed  himself  to  the  risk  of 
being  carried  away  a  prisoner,  with  his  prize  and  his  own  ship 
together,  would  the  humanity  of  his  conduct  have  justified 
the  imprudence  of  it  ?  Henry  V.,  king  of  England,  after  his 
victory  in  the  battle  of  Agincourt,  was  reduced,  or  thought 
himself  reduced,  to  the  cruel  necessity  of  sacrificing  the  pri- 
soners to  his  own  safety.  "In  this  universal  rout,"  says 
Father  Daniel,  "  a  fresh  misfortune  happened,  which  cost  the 
lives  of  a  great  number  of  French.  A  remainder  of  their  van 
was  retreating  in  some  order,  and  many  of  the  stragglers 
rallied  and  joined  it.  The  king  of  England,  observing  their 

»  See  Anaon's  Voyage  round  the  World.      {P.  382,   383.   Lond.   Ed.  4to. 
1756.} 


OF   THE   RIGHTS   OF   NATIONS   IN  WAR.  356 

motions  from  an  eminence,  supposed  it  was  their  intention  to  BOOK  m. 
return  to  the  charge.  At  the  same  moment,  he  received  in-  CHAP>  Tm: 
formation  of  an  attack  being  made  on  his  camp,  where  the 
baggage  was  deposited.  In  fact,  some  noblemen  of  Picardy, 
having  armed  about  six  hundred  peasants,  had  fallen  upon 
the  English  camp.  Thus  circumstanced,  that  prince,  appre- 
hensive of  some  disastrous  reverse,  despatched  his  aides-de- 
camp to  the  different  divisions  of  the  army,  with  orders  for 
putting  all  the  prisoners  to  the  sword,  lest,  in  case  of  a  re- 
newal of  the  battle,  the  care  of  guarding  them  should  prove 
an  impediment  to  his  soldiers,  or  the  prisoners  should  escape 
and  join  their  countrymen.  The  order  was  immediately  car- 
ried into  execution,  and  all  the  prisoners  were  put  to  the 
sword."*  Nothing  short  of  the  greatest  necessity  can  justify 
so  terrible  an  execution ;  and  the  general  whose  situation 
requires  it,  is  greatly  to  be  pitied. 

Is  it  lawful  to  condemn  prisoners  of  war  to  slavery  ?     Yes,  §  152.  Whe- 
in  cases  which  give  a  right  to  kill  them, — when  they  have ther  Pris°n- 
rendered  themselves  personally  guilty  of  some  crime  deserv-^0^" 
ing  of  death.     The  ancients  used  to  sell  their  prisoners  of  made  slave*, 
war  for  slaves.     They,  indeed,  thought  they  had  a  right  to 
put  them  to  death.     In  every  circumstance,  when  I  cannot 
innocently  take  away  my  prisoner's  life,  I  have  no  right  to 
make  him  a  slave.     If  I  spare  his  life,  and  condemn  him  to  [  357  ] 
a  state  so  contrary  to  the  nature  of  man,  I  still  continue  with 
him  the  state  of  war.     He  lies  under  no  obligation  to  me: 
for,  what  is  life  without  freedom  ?     If  any  one  counts  life  a 
favour  when  the  grant  of  it  is  attended  with  chains, — be  it 
so :  let  him  accept  the  kindness,  submit  to  the  destiny  which 
awaits  him,  and  fulfil  the  duties  annexed  to  it.     But  he  must 
apply  to  some  other  writer  to  teach  him  those  duties :  there 
have  been  authors  enough  who  have  amply  treated  of  them. 
I  shall  dwell  no  longer  on  the  subject ;  and,  indeed,  that  dis- 
grace to  humanity  is  happily  banished  from  Europe. 

Prisoners  of  war,  then,  are  detained,  either  to  prevent  their  g  153.   Ex- 
returning  to  join  the  enemy  again,  or  with  a  view  to  obtain  change  and 
from  their  sovereign  a  just  satisfaction,  as  the  price  of  their  ra?som  of 
liberty.     There  is  no  obligation  to  release  those  who  are  de- pn 
tained  with  the  latter  view,  till  after  satisfaction  is  obtained. 
As  to  the  former,  whoever  makes  a  just  war  has  a  right,  if  he 
thinks  proper,  to  detain  his  prisoners  till  the  end  of  the  war : 
and  whenever  he  releases  them,  he  may  justly  require  a  ran- 
som, either  as  a  compensation  at  the  conclusion  of  a  peace, 
or,  if  during  the  continuance  of  the  war,  for  the  purpose  of 
at  least  weakening  his  enemy's  finances  at  the  same  time  that 
he  restores  him  a  number  of  soldiers.     The  European  nations, 
who  are  ever  to  be  commended  for  their  care  in  alleviating  the 

*  Hist,  of  France,  Reign  of  Charles  VL 
59  465 


357  OF  THE  RIGHTS  OF  NATIONS  IN  WAR. 

BOOK  in.    evils  of  war,  have,  with  regard  to  prisoners,  introduced  humane 
CHAP.  Tin.  an(j  gajutary  customs.     They  are  exchanged  or  ransomed,  even 
during  the  war :  and  this  point  is  generally  settled  beforehand 
by  cartel.     However,  if  a  nation  finds  a  considerable  advan- 
tage in  leaving  her  soldiers  prisoners  with  the  enemy  during 
the  war  rather  than   exchanging   them,  she  may  certainly, 
unless  bound  by  cartel,  act  in  that  respect  as  is  most  conducive 
to  her  interest.     Such  would  be  the  case  of  a  state  abound- 
ing in  men,  and  at  war  with  a  nation  more  formidable  by  the 
courage  than  the  number  of  her  soldiers.     It  would  have  ill 
suited  the  interests  of  the  czar,  Peter  the  Great,  to  restore 
his  prisoners  to  the  Swedes  for  an  equal  number  of  Russians. 
£  154.   The      But  the  state  is  bound  to  procure,  at  her  own  expense,  the 
state  is        release  of  her  citizens  and  soldiers  who  are  prisoners  of  war, 
rocure°      as  soon  as  s^e  ^as  *^e  means  °f  accomplishing  it,  and  can  do 
their  re-      it  without  danger.     It  was  only  by  acting  in  her  service  and 
lease.          supporting  her  cause  that  they  were  involved  in  their  present 
misfortune.     For  the  same  reason,  it  is  her  duty  to  provide 
for  their  support  during  the  time  of  their  captivity.     For- 
merly, prisoners  of  war  were  obliged  to  redeem  themselves : 
but  then  the  ransom  of  all  those  whom  the  officers  or  soldiers 
might  take,  was  the  perquisite  of  the  individual  captors.     The 
modern  custom  is  more  agreeable  to  reason  and  justice.     If 
prisoners  cannot  be  delivered  during  the  course  of  the  war, 
at  least  their  liberty  must,  if  possible,  make  an  article  in  the 
treaty  of  peace.     This  is  a  care  which  the  state  owes  to  those 
who  have  exposed  themselves  in  her  defence.     It  must,  ne- 
vertheless, be  allowed,  that  a  nation  may,  after  the  example 
of  the  Romans,  and  for  the  purpose  of  stimulating  her  soldiers 
to  the  most  vigorous  resistance,  enact  a  law  to  prohibit  pri- 
[  358  ]  soners  of  war  from  ever  being  ransomed.     When  this  is  agreed 
to  by  the  whole  society,  nobody  can  complain.     But  such  a 
law  is  very  severe,  and  could  scarce  suit  any  but  those  am- 
bitious heroes  who  were  determined  on  sacrificing  every  thing 
in  order  to  make  themselves  masters  of  the  world, 
g  155.  Who-     Since  the  present  chapter  treats  of  the  rights  which  war 
ther  an  ene-  gives  us  over  the  person  of  the  enemy,  this  is  the  proper 
my  may       place  to  discuss  a  celebrated  question,  on  which  authors  have 
wTaSate'd  ^een  much  divided, — and  that  is,  whether  we  may  lawfully 
»r  poisoned,  employ  all  sorts  of  means  to  take  away  an  enemy's  life  ? 
whether  we  be  justifiable  in  procuring  his  death  by  assassina- 
tion or  poison  ?     Some  writers  have  asserted,  that,  where  we 
have  a  right  to  take  away  life,  the  manner  is  indifferent.     A 
strange  maxim !  but  happily  exploded  by  the  bare  ideas  of 
honour,  confused  and  indefinite  as  they  are.     In  civil  society, 
I  have  a  right  to  punish  a  slanderer, — to  cause  my  property 
to  be  restored  by  him  who  unjustly  detains  it :  but  shall  the 
manner  be  indifferent  ?     Nations  may  do  themselves  justice 
sword  in  hand,  when  otherwise  refused  to  them :  shall  it  be 
indifferent  to  human  society  that  they  employ  odious  means, 

400 


OF  THE   RIGHTS   OF   NATIONS   IN   WAR.  358 

capable  of  spreading  desolation  over  the  whole  face  of  the    BOOK  m. 
earth,  and  against  which  the  most  just  and  equitable  of  sove-  CHAP-  YIU- 
reigns,   even   though   supported   by  the   majority  of   other 
princes,  cannot  guard  himself? 

But,  in  order  to  discuss  this  question  on  solid  grounds,  as- 
sassination is  by  all  means  to  be  distinguished  from  surprises, 
which  are,  doubtless,  very  allowable  in  war.  Should  a  re- 
solute soldier  steal  into  the  enemy's  camp  by  night, — should 
he  penetrate  to  the  general's  tent,  and  stab  him, — in  such 
conduct  there  is  nothing  contrary  to  the  natural  laws  of  war, — 
nothing  even  but  what  is  perfectly  commendable  in  a  just 
and  necessary  war.  Mutius  Scaevola  has  been  praised  by  all 
the  great  men  of  antiquity ;  and  Porsenna  himself,  whom  he 
intended  to  kill,  could  not  but  commend  his  courage.*  Pepin, 
father  of  Charlemagne,  having  crossed  the  Rhine  with  one  of 
his  guards,  went  and  killed  his  enemy  in  his  chamber,  f  If 
any  one  has  absolutely  condemned  such  bold  strokes,  his  cen- 
sure only  proceeded  from  a  desire  to  flatter  those  among  the 
great,  who  would  wish  to  leave  all  the  dangerous  part  of  war 
to  the  soldiery  and  inferior  officers.  It  is  true,  indeed,  that 
the  agents  in  such  attempts  are  usually  punished  with  some 
painful  death.  But  that  is,  because  the  prince  or  general  who 
is  thus  attacked  exercises  his  own  rights  in  turn, — has  an  eye 
to  his  own  safety,  and  endeavours,  by  the  dread  of  a  cruel 
punishment,  to  deter  his  enemies  from  attacking  him  other- 
wise than  by  open  force.  He  may  proportion  his  severity 
towards  an  enemy  according  as  his  own  safety  requires.  In- 
deed, it  would  be  more  commendable  on  both  sides  to  renounce 
every  kind  of  hostility  which  lays  the  enemy  under  a  neces-  r  3f/J  1 
sity  of  employing  cruel  punishments,  in  order  to  secure  him- 
self against  it.  This  might  be  made  an  established  custom, 
— a  conventional  law  of  war.  The  generous  warriors  of  the 
present  age  dislike  such  attempts,  and  would  never  willingly 
undertake  them,  except  on  those  extraordinary  occasions, 
when  they  become  necessary  to  the  very  safety  and  being  of 
their  country.  As  to  the  six  hundred  Lacedaemonians,  who, 
under  the  conduct  of  Leonidas,  broke  into  the  enemy's  camp, 
and  made  their  way  directly  to  the  Persian  monarch's  tent,| 
their  expedition  was  justifiable  by  the  common  rules  of  war, 
and  did  not  authorize  the  king  to  treat  them  more  rigorously 
than  any  other  enemies.  In  order  to  defeat  all  such  attempts, 
it  is  sufficient  to  keep  a  strict  watch ;  and  it  would  be  unjust 
to  have  recourse  to  cruel  punishments  for  that  purpose :  ac- 
cordingly, such  punishments  are  reserved  for  those  only  who 
gain  admittance  by  stealth  alone,  or  in  very  small  number, 
and  especially  if  under  cover  of  a  disguise. 

*  See  Livy,  lib.  ii.  cap.  xii.— Cicero,        f  Grotius,  lib.  iii.  cap.  4,  g  xviii.  n.  L 
pro  P.  Sextio.— Valer.  Max.  lib.  iii.  cap.        j  Justin,  lib.  ii.  cap.  xi. 
iii. — Plutarch,  in  Poplicol. 

467 


359  OF   THE   RIGHTS   OF   NATIONS   IN   WAR. 

BOOK  m.  I  give,  then,  the  name  of  assassination  to  a  treacherous 
CHAP.  Tin.  mur(jer)  -whether  the  perpetrators  of  the  deed  be  subjects  of 
the  party  whom  we  cause  to  be  assassinated,  or  of  our  own 
sovereign, — or  that  it  be  executed  by  the  hand  of  any  other 
emissary,  introducing  himself  as  a  supplicant,  a  refugee,  a 
deserter,  or,  in  fine,  as  a  stranger ;  and  such  an  attempt,  I 
say,  is  infamous  and  execrable,  'both  in  him  who  executes  and 
in  him  who  commands  it.  Why  do  we  judge  an  act  to  be 
criminal,  and  contrary  to  the  law  of  nature,  but  because  such 
act  is  pernicious  to  human  society,  and  that  the  practice  of  it 
would  be  destructive  to  mankind  ?  Now,  what  could  be  more 
terrible  than  the  custom  of  hiring  a  traitor  to  assassinate  our 
enemy?  Besides,  were  such  a  liberty  once  introduced,  the 
purest  virtue,  the  friendship  of  the  majority  of  the  reigning 
sovereigns,  would  no  longer  be  sufficient  to  insure  a  prince's 
safety.  Had  Titus  lived  in  the  time  of  the  old  man  of  the 
mountain, — though  the  happiness  of  mankind  centred  in  him, 
— though  punctual  in  the  observance  of  peace  and  equity,  he 
was  respected  and  adored  by  all  potentates, — yet,  the  very 
first  time  that  the  prince  of  the  Assassins  might  have  thought 
proper  to  quarrel  with  him,  that  universal  aifection  would  have 
proved  insufficient  to  save  him ;  and  mankind  would  have  lost 
their  "darling."  Let  it  not  here  be  replied,  that  it  is  only 
in  favour  of  the  cause  of  justice  that  such  extraordinary 
measures  are  allowable :  for  all  parties,  in  their  wars,  main- 
tain that  they  have  justice  on  their  side.  Whoever,  by  setting 
the  example,  contributes  to  the  introduction  of  so  destructive 
a  practice,  declares  himself  the  enemy  of  mankind,  and  de- 
serves the  execration  of  all  ages.*  The  assassination  of 
[  360  ]  William,  prince  of  Orange,  was  regarded  with  universal  detest- 
ation, though  the  Spaniards  had  declared  that  prince  a  rebel. 
And  the  same  nation  denied,  as  an  atrocious  calumny,  the 
charge  of  having  had  the  least  concern  in  that  of  Henry  the 
Great,  who  was  preparing  for  a  war  against  them,  which  might 
have  shaken  their  monarchy  to  its  very  foundations. 

In  treacherously  administering  poison  there  is  something 

*  See  the   dialogue  between   Julius  on  the  traitor's  own  head,"  he  ordered 

Caesar  and  Cicero,  in  the  Melanges  de  him  to  bo   despatched  with   the  same 

Litte'rature  et  Po6sies. — Farrudge,  sul-  poniard  with  which  he  had  intended  to 

tan  of    Egypt,   sent  to   Timur-bec   an  perpetrate  the  abominable  deed.     The 

ambassador,   accompanied  by  two  vil-  body  of  the  traitor  was  then  committed 

lains,   who    were    to    assassinate   that  to  the  flames,  as  an  example  to  others, 

conqueror   during  the   audience.     This  The  two  assassins  were  only  condemned 

infamous  plot  being  discovered,  "  It  is  to  suffer  the  amputation  of  their  noses 

not,"  said  Timur,  "  the  maxim  of  kings  and   ears ;   Timur    contenting  himself 

to  put  ambassadors  to  death  :  but  as  to  with   this   punishment,  and   forbearing 

this  wretch,  who,  under  the  sacred  garb  to  put  them  to  death,  because  he  wished 

of  religion,  is  a  monster  of  perfidy  and  to  send  them  back  with  a  letter  to  the 

corruption,  it  would  be  a  crime  to  suffer  sultan. — {Petis  de  la  Croix.}     Hist,  of 

him  and  his  accomplices  to  live."    Pur-  Timur-bec,  book  v.  chap.  xxiv.  {p.  313. 

suant,  therefore,  to  that  passage  of  the  Ed.  Delf.  1723.} 
Koran  which  says  that  "treachery  falls 


OF   THE   RIGHTS   OF   NATIONS   IN  WAR.  360 

still  more  odious  than  in  assassination :  it  would  be  more  BOOK  m. 
difficult  to  guard  against  the  consequences  of  such  an  attempt ;  CHAP-  Tm- 
and  the  practice  would  be  more  dreadful ;  accordingly,  it  has 
been  more  generally  detested.  Of  this  Grotius  has  ac- 
cumulated many  instances.*  The  consuls  Caius  Fabricius 
and  Quintus  ^Emilius  rejected  with  horror  the  proposal  of 
Pyrrhus's  physician,  who  made  an  offer  of  poisoning  his 
master ;  they  even  cautioned  that  prince  to  be  on  his  guard 
against  the  traitor, — haughtily  adding :  "  It  is  not  to  ingra- 
tiate ourselves  with  you  that  we  give  this  information,  but  to 
avoid  the  obloquy  to  which  your  death  would  expose  us."f 
And  they  justly  observe,  in  the  same  letter,  that  it  is  for  the 
common  interest  of  all  nations  not  to  set  such  examples.^ 
It  was  a  maxim  of  the  Roman  Senate,  that  war  was  to  be 
carried  on  with  arms,  and  not  with  poison.§  Even  under 
Tiberius,  the  proposal  of  the  prince  of  the  Catti  was  rejected, 
who  offered  to  destroy  Arminius,  if  poison  were  sent  him  for 
that  purpose:  and  he  received  for  answer,  that  "it  was  the 
practice  of  the  Romans  to  take  vengeance  on  their  enemies  by 
open  force,  and  not  by  treachery  and  secret  machinations  ;"|| 
Tiberius  thus  making  it  his  glory  to  imitate  the  virtue  of  the 
ancient  Roman  commanders.  This  instance  is  the  more  re- 
markable, as  Arminius  had  treacherously  cut  off  Varus,  to- 
gether with  three  Roman  legions.  The  senate,  and  even 
Tiberius  himself,  thought  it  unlawful  to  adopt  the  use  of 
poison,  even  against  a  perfidious  enemy,  and  as  a  kind  of  re- 
taliation or  reprisals. 

Assassination  and  poisoning  are  therefore  contrary  to  the 
laws  of  war,  and  equally  condemned  by  the  law  of  nature 
and  the  consent  of  all  civilized  nations.  The  sovereign  who  [  361  ] 
has  recourse  to  such  execrable  means  should  be  regarded  as 
the  enemy  of  the  human  race ;  and  the  common  safety  of 
mankind  calls  on  all  nations  to  unite  against  him,  and  join 
their  forces  to  punish  him.  His  conduct  particularly  au- 
thorizes the  enemy,  whom  he  has  attacked  by  such  odious 
means,  to  refuse  him  any  quarter.  Alexander  declared,  that 
"he  was  determined  to  proceed  to  the  utmost  extremities 
against  Darius,  and  no  longer  to  consider  him  as  a  fair  enemy,  + 
but  as  a  poisoner  and  an  assassin."^" 

The  interest  and  safety  of  men  in  high  command  require, 
that,  so  far  from  countenancing  the  introduction  of  such  prac- 

*  Book  iii.  chap.  iv.  \  xv.  g  Armis  bella,  non  venenig,  geri  de- 

f  Oob  yap  raura  a3  Xapir<  jupwyuy,  bere.— Valer.    Maxim,   lib.   vi.   ch.   v. 

oXX'    em-uf  ftij   ro  ttov  iraBo;    TI/KV    <5ia§oAijK  num.  i. 

fi*y*j.— Plut  in  Pyrr.  j|  Non  fraude,  neque  occultis,  sed  pa- 

J  Sed  communis  exempli  et  fidei  ergo  lam,  et  armatum,— populum  Romanum 

visum  est,  uti   te   ealvum  velimus ;  ut  hostes  sues  ulcisci. — Tacit  Annal.  lib.  ii. 

esset,  quern    armis  vincere    possemus.  cap.  Ixxxviii. 

— AuL  Gell.  Noct   Attic,  lib.    iiL  cap.  f  Quint  Curt  lib.  iv.  cap.  xi.  num. 

Tiii-  xviii. 

2P  469 


361  OF  THE   RIGHTS   OF  NATIONS  IN  WAR. 

BOOK  m.  tices,  they  should  use  all  possible  care  to  prevent  it.  It  was 
CHAP,  via.  wisely  said  by  Eumenes,  that  "he  did  not  think  any  general 
wished  to  obtain  a  victory  in  such  manner  as  should  set  a 
pernicious  example  which  might  recoil  on  himself."*  And  it 
was  on  the  same  principle  that  Alexander  formed  his  judg- 
ment of  Bessus,  who  had  assassinated  Darius,  f 

§  156.  Whe-  The  use  of  poisoned  weapons  may  be  excused  or  defended 
tW  poison-  wjth  a  little  more  plausibility.  At  least,  there  is  no  treachery 
;d  weapons  m  the  case,  no  clandestine  machination.  But  the  practice  is 
iiTwar! USe  nevertheless  prohibited  by  the  law  of  nature,  which  does  not 
allow  us  to  multiply  the  evils  of  war  beyond  all  bounds.  You 
must  of  course  strike  your  enemy  in  order  to  get  the  better 
of  his  efforts :  but  if  he  is  once  disabled,  is  it  necessary  that 
he  should  inevitably  die  of  his  wounds  ?  Besides,  if  you  poi- 
son your  weapons,  the  enemy  will  follow  your  example ;  and 
thus,  without  gaining  any  advantage  on  your  side  for  the 
decision  of  the  contest,  you  have  only  added  to  the  cruelty 
and  calamities  of  war.  It  is  necessity  alone  that  can  at  all 
justify  nations  in  making  war:  they  ought  universally  to 
abstain  from  every  thing  that  has  a  tendency  to  render  it 
more  destructive :  it  is  even  a  duty  incumbent  on  them  to 
oppose  such  practices.  It  is  therefore  with  good  reason,  and 
in  conformity  to  their  duty,  that  civilized  nations  have  classed 
among  the  laws  of  war  the  maxim  which  prohibits  the  poison- 
ing of  weapons  ;J  and  they  are  all  warranted  by  their  com- 
mon safety  to  repress  and  punish  the  first  who  should  offer  to 
break  through  that  law. 

§  157.  Whe-  A  still  more  general  unanimity  prevails  in  condemning  the 
ther  springs  practice  of  poisoning  waters,  wells,  and  springs,  because  (say 
m^'y  e,  some  authors)  we  may  thereby  destroy  innocent  persons, — 

poisoned.  /         .1  i  11  •  rrn  •     • 

we  may  destroy  other  people  as  well  as  our  enemies.     This  is 
indeed  an  additional  reason :  but  it  is  not  the  only  nor  even 
[  362  ]  the  true  one ;  for  we  do  not  scruple  to  fire  on  an  enemy's 
ship,  although  there  be  neutral  passengers  on  board.     But 
though  poison  is  not  to  be  used,  it  is  very  allowable  to  divert 
the  water, — to  cut  off  the  springs, — or  by  any  other  means  to 
render  them  useless,  that  the  enemy  may  be  reduced  to  sur- 
render^    This  is  a  milder  way  than  that  of  arms.  (163) 
§  158.    Dis-     I  cannot  conclude  this  subject,  of  what  we  have  a  right  to 
positions  to  do  against  the  person  of  the  enemy,  without  speaking  a  few 

*  Nee    Antigonum,   nee    quemquam  (163)  But,  in  modern  warfare,  what- 

ducum,  sic  velle  vincere,  ut  ipse  in  so  ever  may  be  the  necessary  practice  in 

exemplum    pessimum   statuat. — Justin,  starving   the    besieged   fortress    into  a 

lib.  xiv.  cap.  i.  num.  xii.  surrender,  we  have  instanced  the  Eng- 

•)•  Quern    quidem  [J5e«««m]   cruci  ad-  lish   supplying  the  French   army  with 

fixum  videre  festino,  omnibus   regibus  medicine,  to  prevent  the  progress  of  a 

gentibusque    fidei,  quam    violavit,  me-  destructive  disorder,  although,  if  a  petty 

ritas  poenas    solventum. — Q.    Curt.  lib.  policy  were  allowed  to  prevail,  such  an 

vi.  ch.  iii.  num.  xiv.  indulgence  of  humane  feeling  might  ap- 

J  Grotius,  book  iii.  ch.  iv.  §  xvi.  pear  injudicious  (ante). — C. 

g  Grotius,  ibid.  §  xvii. 
470 


OP  THE   RIGHTS   OF   NATIONS   IN  WAR. 


words  concerning  the  dispositions  we  ought  to  preserve  to-   BOOK  m. 
wards  him.    They  may  already  be  deduced  from  what  I  have  OHAP'  vnr' 


hitherto  said,  and  especially  in  the  first  chapter  of  the  second  be  Preserved 
book.  Let  us  never  forget  that  our  enemies  are  men.  Though  ^w"  w 
reduced  to  the  disagreeable  necessity  of  prosecuting  our 
right  by  force  of  arms,  let  us  not  divest  ourselves  of  that 
charity  which  connects  us  with  all  mankind.  Thus  shall  we 
courageously  defend  our  country's  rights  without  violating 
those  of  human  nature.*  Let  our  valour  preserve  itself  from 
every  stain  of  cruelty,  and  the  lustre  of  victory  will  not  be 
tarnished  by  inhuman  and  brutal  actions.  Marius  and  Attila 
are  now  detested ;  whereas  we  cannot  forbear  admiring  and 
loving  Caesar ;  his  generosity  and  clemency  almost  tempt  us 
to  overlook  the  injustice  of  his  undertaking.  Moderation 
and  generosity  redound  more  to  the  glory  of  a  victor  than 
his  courage ;  they  are  more  certain  marks  of  an  exalted  soul. 
Besides  the  honour  which  infallibly  accompanies  those  virtues, 
humanity  towards  an  enemy  has  been  often  attended  with 
immediate  and  real  advantages.  Leopold,  duke  of  Austria, 
besieging  Soleure,  in  the  year  1318,  threw  a  bridge  over  the 
Aar,  and  posted  on  it  a  large  body  of  troops.  Soon  after, 
the  river  having,  by  an  extraordinary  swell  of  its  waters,  car- 
ried away  the  bridge  together  with  those  who  were  stationed 
on  it, — the  besieged  hastened  to  the  relief  of  those  unfortunate 
men,  and  saved  the  greatest  part  of  them.  Leopold,  relent- 
ing at  this  act  of  generosity,  raised  the  siege  and  made  peace 
with  the  city.f  The  duke  of  Cumberland,  after  his  victory 
at  Dettingen,^  appears  to  me  still  greater  than  in  the  heat  of 
battle.  As  he  was  under  the  surgeon's  hands,  a  French  [  363  ] 
officer,  much  more  dangerously  wounded  than  himself,  being 
brought  that  way,  the  duke  immediately  ordered  his  surgeon 
to  quit  him,  and  assist  that  wounded  enemy.  If  men  in  ex- 
alted stations  did  but  conceive  how  great  a  degree  of  affec- 
tion and  respect  attends  such  actions,  they  would  study  to 

*  The  laws  of  justice  and  equity  are  of  a  bribe,  but  with  a  view  to  save  the 

not  to   be  less  respected  even  in  time  women   and    children,   whom    he    saw 

of  war.     The   following  I   quote   as  a  perishing  with   famine;  for   Clearchus, 

remarkable     instance : — Alcibiades,    at  who  commanded  the  garrison,  had  given 

the   head  of  an  Athenian   army,  was  to  the   soldiers   all   the   corn  that  was 

engaged  in    the  siege    of  Byzantium,  found  in  the  city.     The   Lacedsemoni- 

then  occupied  by  a  Lacedaemonian  gar-  ans,  with  a  noble  regard  to  justice,  and 

rison ;  and  finding  that  he   could  not  such  as  seldom  prevails  on  similar  oc- 

reduce   the   city  by   force,    he   gained  casions,  acquitted  the  culprit,  observing 

over  some  of  the  inhabitants,  who  put  that  he   had  not  betrayed,  but  saved 

him   in  possession  of  it.      One   of  the  the  city,  and  particularly  attending  to 

persons   concerned  in   this  transaction  the     circumstance     of     his     being     a 

was  Anaxilaus,  a  citizen  of  Byzantium,  Byzantine,    not    a     Lacedaemonian.— 

who,  being  afterwards  brought  to  trial  Xenoph.   Hist.  Graec.  lib.  i.   cap.  iii.— 

for  it  at   Lacedaemon,  pleaded  in  his  Edit.  A.  D.  1797. 

defence,  that,  in  surrendering  the  city,        f  Watteville's   Hist,  of  the  Helvetic 

he  had  not  acted  through  ill-will  to  the  Confederacy,  vol.  i.  p.  126. 
Lacedaemonians,  or  under  the  influence        J  In  the  year  1743. 

471 


363  OP   THE   RIGHTS   OF  NATIONS   IN  WAR. 

BOOK  m.  imitate  them,  even  when  not  prompted  to  the  practice  by 
CHAP.  Tin.  natjve  elevation  of  sentiment.  At  present,  the  European 
nations  generally  carry  on  their  wars  with  great  moderation 
and  generosity.  These  dispositions  have  given  rise  to  several 
customs  which  are  highly  commendable,  and  frequently  car- 
ried to  the  extreme  of  politeness.*  Sometimes  refreshments 
are  sent  to  the  governor  of  a  besieged  town ;  and  it  is  usual 
to  avoid  firing  on  the  king's  or  the  general's  quarters.  We 
are  sure  to  gain  by  this  moderation,  when  we  have  to  do  with 
a  generous  enemy :  but  we  are  not  bound  to  observe  it  any 
further  than  can  be  done  without  injuring  the  cause  we  de- 
fend; and  it  is  clear  that  a  prudent  general  will,  in  this 
respect,  regulate  his  conduct  by  the  circumstances  of  the 
case,  by  an  attention  to  the  safety  of  the  army  and  of  the 
state,  by  the  magnitude  of  the  danger,  and  by  the  character 
and  behaviour  of  the  enemy.  Should  a  weak  nation  or  town 
be  attacked  by  a  furious  conqueror  who  threatens  to  destroy 
it,  are  the  defenders  to  forbear  firing  on  his  quarters  ?  Far 
from  it :  that  is  the  very  place  to  which,  if  possible,  every 
shot  should  be  directed. 

2  159.  Ten-  Formerly,  he  who  killed  the  king  or  general  of  the  enemy 
derness  for  was  commended  and  greatly  rewarded :  the  honours  annexed 
the  person  tne  Sp0na  opima  are  well  known.  Nothing  was  more  natural : 
w^oU^n  in  former  times,  the  belligerent  nations  had,  almost  in  every 
arms  against  instance,  their  safety  and  very  existence  at  stake ;  and  the 
ua.  death  of  the  leader  often  put  an  end  to  the  war.  In  our 

days,  a  soldier  would  not  dare  to  boast  of  having  killed  the 
enemy's  king.  Thus  sovereigns  tacitly  agree  to  secure  their 
own  persons.  It  must  be  owned,  that,  in  a  war  which  is  car- 
ried on  with  no  great  animosity,  and  where  the  safety  and 
existence  of  the  state  are  not  involved  in  the  issue,  this 
regard  for  regal  majesty  is  perfectly  commendable,  and  even 
consonant  to  the  reciprocal  duties  of  nations.  In  such  a  war, 
to  take  away  the  life  of  the  enemy's  sovereign,  when  it  might 
be  spared,  is  perhaps  doing  that  nation  a  greater  degree  of 
harm  than  is  necessary  for  bringing  the  contest  to  a  happy 
issue.  But  it  is  not  one  of  the  laws  of  war  that  we  should  on 


*  Timur-bec    made   war    on    Joseph  share  those  new  fruits  with  that  prince 

Sofy,  king  of    Carezem,   and   subdued  when  so  near  him :  and  accordingly  he 

his   kingdom.     During   the  course    of  ordered   them    to    be    put   into  a  gold 

the  war,  that  great  man  proved  him-  basin,  and   carried  to  him.     The  king 

self  to  be  possessed  of  all  that  modera-  of  Carezem    received   this  instance  of 

tion   and  politeness   which  is  thought  politeness  in  a  brutal  manner;  he  or- 

peculiar  to  our  modern  warriors.     Some  dered   the   melons   to   be    thrown  into 

melons  being  brought  to  him  whilst  he  the   fosse,  and    gave    the  basin  to  the 

was    besieging  Joseph   in   the   city  of  city  gate-keeper. — La    Croix,  Hist,  of 

Eskiskus,  ho  resolved  to  send  a  part  Timur-bec,   book  v.    ch.    xxvii. — Edit, 

of    them    to    his    enemy,    thinking   it  A.D.  1797. 
would  be   a   breach   of  civility  not  to 
472 


OF   THE   RIGHT   OVER   ENEMIES'    PROPERTY. 


363 


every  occasion  spare  the  person  of  the  hostile  king :  we  are  BOOK.  m. 
not  bound  to  observe  that  moderation  except  where  we  have  CHAP.  Tin. 
a  fair  opportunity  of  making  him  prisoner.* 


CHAP.  IX. 


[364] 


OF  THE  RIGHT  OF  WAR,  WITH   REGARD   TO   THINGS  BELONGING    CHAP,  ix. 
TO   THE   ENEMY.  (164) 

A  STATE  taking  up  arms  in  a  just  cause  has  a  double  §  ieo.  Prin- 
right  against  her  enemy, — 1.  a  right  to  obtain  possession  of  ciPles  of  tne 
her  property  withheld  by  the  enemy;  to  which  must  be  added  jjjj*^" 
the   expenses   incurred  in  the   pursuit  of  that   object,  thelongfngto 
charges  of  the  war,  and  the  reparation  of  damages :  for,  were  the  enemy, 
she  obliged  to  bear  those  expenses  and  losses,  she  would  not 
fully  recover  her  property,  or  obtain  her  due.     2.  She  has  a 
right  to  weaken  her  enemy,  in  order  to  render  him  incapable 
of  supporting  his  unjust  violence  (§  138) — a  right  to  deprive 
him  of  the  means  of  resistance.     Hence,  as  from  their  source, 
originate  all  the  rights  which  war  gives  us  over  things  belong- 
ing to  the  enemy.     I  speak  of  ordinary  cases,  and  of  what 


*  On  this  subject,  let  us  notice  a 
trait  of  Charles  XII.  of  Sweden,  in 
which  sound  reason  and  the  most  ex- 
alted courage  are  equally  conspicuous. 
That  prince,  being  engaged  in  the  siege 
of  Thorn  in  Poland,  and  frequently 
walking  round  the  city,  was  easily  dis- 
tinguished by  the  cannoneers,  who 
regularly  fired  upon  him  as  soon  as 
they  saw  him  make  his  appearance. 
The  principal  officers  of  his  army,  great- 
ly alarmed  at  their  sovereign's  danger, 
wished  to  have  information  sent  to  the 
governor,  that,  if  the  practice  was  con- 
tinued, no  quarter  should  bo  granted 
either  to  him  or  to  the  garrison.  But 
the  Swedish  monarch  would  never  per- 
mit such  a  step  to  be  taken,  telling  his 
officers  that  the  governor  and  the  Saxon 
cannoneers  were  perfectly  right  in  act- 
ing as  they  did,  that  it  was  himself 
who  made  the  attack  upon  them,  and 
that  the  war  would  be  at  an  end  if 
they  could  kill  him;  whereas  they 
would  reap  very  little  advantage  even 
from  killing  the  principal  officers  of  his 
army.— Histoire  du  Nord,  p.  26.— Edit 
A.  D.  1797. 

(164)  See,  in  general,  Grotius,  ch. 
6 ;  Home  on  Captures  5  Marten's  L.  Nat. 


287 ;  and  the  modern  decisions,  1  Chit- 
ty's  Commercial  Law,  377 — i37;  and 
Chitty's  Law  of  Nations,  per  tot.  And 
as  to  the  legal  right  of  embargo  and 
capture,  as  it  affects  commerce,  and  ex- 
ceptions, as  respects  small  fishing  vessels, 
1  Chitty's  C.  L.  426.  But,  that  exemp- 
tion is  matter  of  forbearance,  rather  than 
of  right,  and  seems  analogous  to  hus- 
bandmen and  cultivators  of  land  being 
usually  spared,  see  Vattel,  §  147,  ante, 
352 ;  and  see  Young,  Jacob,  and  Johorca, 
1  Rob.  Rep.  19,  as  to  fishing-boats  and 
fishermen,  per  Sir  Wm.  Scott. 

Questions  respecting  captures  and 
prizes,  or  even  imprisonment  of  the 
person  incident  to  the  seizure  as  prize, 
cannot  in  general  become  the  subject 
of  litigation,  directly,  in  any  of  the  mu- 
nicipal courts  of  this  country,  but  must 
be  investigated  in  a  prize  court,  which, 
in  this  country,  is  holden  under  a  dis- 
tinct authority  from  that  of  the  court 
of  Admiralty,  viz.  under  a  special  com- 
mission from  the  king,  who  would 
otherwise  preside  in  person  over  prize 
questions:  and  from  such  commission 
there  is  usually  an  appeal  to  the  king 
in  council;  see  cases  in  note  (165),  posit 
365.— C. 


60 


2p2 


473 


364  OF   THE   RIGHT   OVER   ENEMIES'    PROPERTY. 

BOOK  in.    particularly  relates  to  the  enemy's  property.     On  certain  oc- 
CHAP.  ix.  casions>  the  right  of  punishing  him  produces  new  rights  over 
the  things  which  belong  to  him,  as  it  also  does  over  his  person. 
These  we  shall  presently  consider. 

§  161.    The      We  have  a  right  to  deprive  our  enemy  of  his  possessions, 
right  of        Of  every  thing  which  may  augment  his  strength  and  enable 
them^  °U    h*m  *°  ma^e  war*     This  every  one  endeavours  to  accomplish 
in  the  manner  most  suitable  to  him.     Whenever  we  have  an 
opportunity,  we  seize  on  the  enemy's  property,  and  convert 
it  to  our  own  use :  and  thus,  besides  diminishing  the  enemy's 
power,  we  augment  our  own,  and  obtain  at  least  a  partial  in- 
demnification or  equivalent,  either  for  what  constitutes  the 
subject  of  the  war,  or  for  the  expenses  and  losses  incurred  in 
its  prosecution : — in  a  word,  we  do  ourselves  justice. 
\  162.  What     The  right  to  security  often  authorizes  us  to  punish  injustice 
is  taken       or  violence.     It  is  an  additional  plea  for  depriving  an  enemy 
^iTm^b       °^  some  Part  °f  his  possessions.     This  manner  of  chastising  a 
waymof  pe_   nation  is  more  humane  than  making  the  penalty  to  fall  on  the 
naity.          persons  of  the  citizens.     With  that  view,  things  of  value  may 
[  365  ]  be  taken  from  her,  such  as  rights,  cities,  provinces.     But  all 
wars  do  not  afford  just  grounds  for  inflicting  punishment.     A 
nation  that  has  with  upright  intentions  supported  a  bad  cause, 
and  observed  moderation  in  the  prosecution  of  it,  is  entitled 
rather  to  compassion  than  resentment  from  a  generous  con- 
queror :  and  in  a  doubtful  cause  we  are  to  suppose  that  the 
enemy  sincerely  thinks  himself  in  the  right.     (Prelim.  §  21 ; 
Book  III.  §  40.)     The  only  circumstance,  therefore,  which 
gives  an  enemy  the  right  to  punish  his  adversaries,  is  their 
evident  injustice,  unsupported  even  by  any  plausible  pretext, 
or  some  heinous  outrage  in  their  proceedings :  and,  on  every 
occasion,  he  ought  to  confine  the  punishment  to  what  his  own 
security  and  the  safety  of  nations  require.  As  far  as  consistent 
with  prudence,  it  is  glorious  to  obey  the  voice  of  clemency : 
that  amiable  virtue  seldom  fails  of  being  more  useful  to  the 
party  who  exerts  it,  than  inflexible  rigour.     The  clemency  of 
Henry  the  Great  was  of  singular  advantage  in  co-operating 
with  his  valour,  when  thaj  good  prince  found  himself  com- 
pelled to  conquer  his  ovn  kingdom.     Those  who  would  have 
continued  his  enemies  if  only  subdued  by  arms,  were  won  by 
his  goodness,  and  became  affectionate  subjects. 

\  163.  What  In  fine,  we  seize  on  the  enemy's  property,  his  towns,  his 
is  withheld  provinces,  in  order  to  bring  him  to  reasonable  conditions,  and 
from  him,  compei  him  to  accept  of  an  equitable  and  solid  peace.  Thus 

in  order  to  •     ±   i          f  i_*        At:         i.  1.1.        • 

oblige  him    mucn  more  is  taken  from  him  than  he  owes,  more  than  is 

to  give  just  claimed  of  him :  but  this  is  done  with  a  design  of  restoring 

•atisfaction.  the  surplus  by  a  treaty  of  peace.     The  king  of  France*  was, 

in  the  last  war,  known  to  declare  that  he  aimed  at  nothing  for 

*  The  peace  was   become  absolutely  with  all   its  dependencies,  which  were 

necessary  to  him ;  and  he  had,  in  re-  of  more  importance  to  him.     [Note  by 

turn  f»r  his  few  conquests,  Louisbourg,  the  former  translator.] 
474 


OF   THE   RIGHT   OVER   ENEMIES*    PROPERTY. 


365 


himself:    and  by  the  treaty  of  Aix-la-Chapelle,  he  actually   BOOK  m. 
restored  all  his  conquests.  CHAP,  ix. 

As  the  towns  and  lands  taken  from  the  enemy  are  called  ?  164. 
conquests,  all  movable  property  taken  from  him  comes  under  Booty.(i65) 
the  denomination  of  booty.  This  booty  naturally  belongs  to 
the  sovereign  making  war,  no  less  than  the  conquests ;  for  he 
alone  has  such  claims  against  the  hostile  nation  as  warrant 
him  to  seize  on  her  property  and  convert  it  to  his  own  use.  (165) 
His  soldiers,  and  even  his  auxiliaries,  are  only  instruments 
which  he  employs  in  asserting  his  right.  He  maintains  and 
pays  them.  Whatever  they  do  is  in  his  name,  and  for  him. 
Thus,  there  is  no  difficulty,  even  with  regard  to  the  auxiliaries. 
If  they  are  not  associates  in  the  war,  it  is  not  carried  on  for 
their  benefit ;  and  they  have  no  more  right  to  the  booty  than 
to  the  conquests.  But  the  sovereign  may  grant  the  troops 
what  share  of  the  booty  he  pleases.  At  present  most  nations 
allow  them  whatever  they  can  make  on  certain  occasions  when  [  366  ] 
the  general  allows  of  plundering, — such  as  the  spoil  of  ene- 
mies fallen  in  the  field  of  battle,  the  pillage  of  a  camp  which 


(165)  That  they  belong  to  the  king, 
unless  delegated  to  a  subject,  see  fur- 
ther, post,  §  202,  page  391.  But  to  the 
king  for  the  benefit  of  the  community, 
and  not  as  his  own  private  property. 
Id.  ibid.  In  case  a  territory  of  a  fo- 
reign sovereign,  or  a  part  of  it,  be  cap- 
tured, the  sovereign  of  the  conquering 
state  is  entitled  to  all  the  property  there 
of  the  conquered  sovereign  ;  Advocate 
General  v.  Amerchund,  Knapp's  Rep. 
of  Cases  before  the  Privy  Council,  329  ; 
and  the  same  case  establishes  that 
there  is  no  distinction,  in  this  respect, 
between  the  public  and  private  property 
of  an  absolute  monarch;  and  that, 
therefore,  money  in  the  hands  of  the 
banker  of  a  prince,  whose  territories 
have  been  conquered  by  the  British, 
may  be  recovered  on  an  information 
by  the  English  attorney-general  from 
the  banker.  Decided  in  Privy  Council, 
reversing  the  judgment  of  the  court  be- 
low at  Bombay.  See  Holt's  case,  Ni. 
Pri.  113;  Undo  v.  Rodney,  Douglas, 
313 ;  Caux  v.  Eden,  Douglas,  594 ;  El- 
phinstone  v.  Bedreechund,  Knapp's  Rep. 
316;  Chitty's  Gen.  Practice,  2  n.  (6), 
16  n.  (e),  Id.  818.  But  to  this  rule 
there  is  an  exception,  as  regards  any 
trust  which  may  be  enforced  in  a  court 
of  equity ;  Pearton  v.  Belcher,  4  Ves. 
827  ;  Chaloner  v.  Samson,  1  Bro.  pi.  149  ; 
and  see  Hill  v.  Reardon,  2  Russell's 
Rep.  608,  qualifying  2  Sim.  A  Stu.  Rep. 
437—451;  Chitty's  Gen.  Practice,  818. 
When  the  property  seized  is  under 


£100,  the  claim  may  be  settled  in  the 
prize  court,  summarily,  and  without  a 
formal  suit ;  but  not  so,  if  it  be  even  a 
trifle  above  that  amount.  The  Mercurius, 
5  Rob.  127. 

In  the  case  of  Elphinstone  v.  Bedree- 
chund, Knapp's  Rep.  316,  where  the 
members  of  the  provisional  government 
of  a  recently  conquered  country  had 
seized  the  property  of  a  native,  who 
had  been  refused  the  benefit  of  the  ar- 
ticles of  capitulation  of  a  fortress,  of 
which  he  was  the  governor,  but  who 
had  been  permitted  to  reside  under 
military  surveillance  in  his  own  house 
in  the  city,  in  which  the  seizure  was 
made,  and  which  was  at  a  distance 
from  the  scene  of  actual  hostilities,  it 
was  held  that  such  seizure  must  be  re- 
garded in  the  light  of  a  hostile  seizure, 
and  that,  therefore,  a  municipal  court 
had  no  jurisdiction  on  the  subject. 
And  it  was  further  considered,  in  the 
same  case,  that  the  circumstance  that, 
at  the  time  of  the  seizure,  the  city 
where  it  was  made  had  been,  for  some 
months  previously,  in  the  undisturbed 
possession  of  the  provisional  govern- 
ment, and  that  courts  of  justice,  under 
the  authority  of  that  government,  were 
sitting  in  it  for  the  administration  of 
justice,  did  not  alter  the  character  of 
the  transaction ;  and  that,  consequently, 
whatever  might  be  the  legality  of  the 
capture,  or  hostile  seizure,  still  the  party 
had  mistaken  his  remedy  in  prosecuting 
it  in  the  supreme  court  of  Bombay. — C. 
475 


366  OF  THE  RIGHT  OVER  ENEMIES  PROPERTY. 

BOOK  in.  has  been  forced,  and  sometimes  that  of  a  town  taken  by  as- 
_CHAP.  ix.  gauik  jn  several  services,  the  soldier  has  also  the  property 
of  what  he  can  take  from  the  enemy's  troops  when  he  is  out 
on  a  party,  or  in  a  detachment,  excepting  artillery,  military 
stores,  magazines,  and  convoys  of  provisions  and  forage,  which 
are  applied  to  the  wants  and  use  of  the  army.  This  custom 
being  once  admitted  in  an  army,  it  would  be  injustice  to  ex- 
clude the  auxiliaries  from  the  right  allowed  to  the  national 
troops.  Among  the  Romans,  the  soldier  was  obliged  to  bring 
in  to  the  public  stock  all  the  booty  he  had  taken.  This  the 
general  caused  to  be  sold ;  and,  after  distributing  a  part  of 
the  produce  among  the  soldiers,  according  to  rank,  he  con- 
signed the  residue  to  the  public  treasury. 

g  165.  Con-  Instead  of  the  custom  of  pillaging  the  open  country  and 
tributions.  defenceless  places,  another  mode  has  been  substituted,  which 
is  at  once  more  humane,  and  more  advantageous  to  the  bel- 
ligerent sovereign — I  mean  that  of  contributions.  Whoever 
carries  on  a  just  war  has  a  right  to  make  the  enemy's  country 
contribute  to  the  support  of  his  army,  and  towards  defraying 
all  the  charges  of  the  war.  Thus,  he  obtains  a  part  of  what 
is  due  to  him  ;  and  the  enemy's  subjects,  by  consenting  to 
pay  the  sum  demanded,  have  their  property  secured  from  pil- 
lage, and  the  country  is  preserved.  But  a  general  who  wishes 
to  enjoy  an  unsullied  reputation,  must  be  moderate  in  his  de- 
mand of  contributions,  and  proportion  them  to  the  abilities  of 
those  on  whom  they  are  imposed.  An  excess  in  this  point 
does  not  escape  the  reproach  of  cruelty  and  inhumanity :  al- 
though there  is  not  so  great  an  appearance  of  ferocity  in  it  as 
in  ravage  and  destruction,  it  displays  a  greater  degree  of 
avarice  or  greediness.  Instances  of  humanity  and  moderation 
cannot  be  too  often  quoted.  A  very  commendable  one  oc- 
curred during  those  long  wars  which  France  carried  on  in  the 
reign  of  Louis  XIV.  The  sovereigns,  seeing  it  was  their  mu- 
tual interest  as  well  as  duty  to  prevent  ravage,  made  it  a 
practice,  on  the  commencement  of  hostilities,  to  enter  into 
treaties  for  regulating  the  contributions  on  a  supportable  foot- 
ing :  they  determined  the  extent  of  hostile  territory  in  which 
each  might  demand  contributions,  the  amount  of  them,  and 
the  manner  in  which  the  parties  sent  to  levy  them  were  to  be- 
have. In  these  treaties  it  was  expressed,  that  no  body  of 
men  under  a  certain  number  should  advance  into  the  enemy's 
country  beyond  th§  limits  agreed  on,  under  the  penalty  of  be- 
ing treated  as  freebooters.  By  such  steps  they  prevented  a 
multitude  of  disorders  and  enormities,  which  entail  ruin  on 
the  people,  and  generally  without  the  least  advantage  to  the 
belligerent  sovereigns.  Whence  comes  it  that  so  noble  an  ex- 
ample is  not  universally  imitated  ? 

§  166.  Waste     If  it  is  lawful  to  take  away  the  property  of  an  unjust  enemy 
and  destruc-  jn  or <jer  to  weaken  or  punish  him,  (§§  161, 162),  the  same  mo- 
tives justify  us  in  destroying  what  we  cannot  conveniently 


OP  THE   RIGHT   OVER   ENEMIES'   PROPERTY.  366 

carry  away.     Thus,  we  waste  a  country,  and  destroy  the  pro-  BOOK  m. 

*4rt                                  1                    1                                                                                   f*         t                      l        •  **n  *  ™      '•"*' 

visions  and  forage,  that  the  enemy  may  not  find  a  subsistence 


there :  we  sink  his  ships  when  we  cannot  take  them  or  bring  [  367  ] 
them  off.  All  this  tends  to  promote  the  main  object  of  the 
war :  but  such  measures  are  only  to  be  pursued  with  modera- 
tion, and  according  to  the  exigency  of  the  case.  Those  who 
tear  up  the  vines  and  cut  down  the  fruit-trees  are  looked  upon 
as  savage  barbarians,  unless  when  they  do  it  with  a  view  to 
punish  the  enemy  for  some  gross  violation  of  the  law  of  na- 
tions. They  desolate  a  country  for  many  years  to  come,  and 
beyond  what  their  own  safety  requires.  Such  conduct  is  not 
dictated  by  prudence,  but  by  hatred  and  fury. 

On  certain  occasions,  however,  matters  are  carried  still  §  167.  Ra- 
farther :  a  country  is  totally  ravaged,  towns  and  villages  are  v&s"^s  and 
sacked,  and  delivered  up  a  prey  to  fire  and  sword.  Dread-  urnmg- 
ful  extremities,  even  when  we  are  forced  into  them  !  Savage 
and  monstrous  excesses,  when  committed  without  necessity ! 
There  are  two  reasons,  however,  which  may  authorize  them, — 
1.  the  necessity  of  chastising  an  unjust  and  barbarous  nation, 
of  checking  her  brutality,  and  preserving  ourselves  from  her 
depredations.  Who  can  doubt  that  the  king  of  Spain  and  the 
powers  of  Italy  have  a  very  good  right  utterly  to  destroy  those 
maritime  towns  of  Africa,  those  nests  of  pirates,  that  are  con- 
tinually molesting  their  commerce  and  ruining  their  subjects? 
But  what  nation  will  proceed  to  such  extremities  merely  for 
the  sake  of  punishing  the  hostile  sovereign?  It  is  but  in- 
directly that  he  will  feel  the  punishment :  and  how  great  the 
cruelty,  to  ruin  an  innocent  people  in  order  to  reach  him ! 
The  same  prince  whose  firmness  and  just  resentment  was  com- 
mended in  the  bombardment  of  Algiers,  was,  after  that  of 
Genoa,  accused  of  pride  and  inhumanity*  2.  We  ravage  a 
country  and  render  it  uninhabitable,  in  order  to  make  it  serve 
us  as  a  barrier,  and  to  cover  our  frontier  against  an  enemy 
whose  incursions  we  are  unable  to  check  by  any  other  means. 
A  cruel  expedient,  it  is  true :  but  why  should  we  not  be  al- 
lowed to  adopt  it  at  the  expense  of  the  enemy,  since,  with  the 
same  view,  we  readily  submit  to  lay  waste  our  own  provinces  ? 

The  czar  Peter  the  Great,  in  his  flight  before  the  formidable 
Charles  the  Twelfth,  ravaged  an  extent  of  above  fourscore 
leagues  of  his  own  empire,  in  order  to  check  the  impetuosity 
of  a  torrent  which  he  was  unable  to  withstand.  Thus,  the 
Swedes  were  worn  down  with  want  and  fatigue ;  and  the  Kus- 
sian  monarch  reaped  at  Pultowa  the  fruits  of  his  circumspec- 
tion and  sacrifices.  But  violent  remedies  are  to  be  sparingly 
applied :  there  must  be  reasons  of  suitable  importance  to  jus- 
tify the  use  of  them.  A  prince  who  should,  without  necessity, 
imitate  the  czar's  conduct,  would  be  guilty  of  a  crime  against 
his  people :  and  he  who  does  the  like  in  an  enemy's  country, 
when  impelled  to  it  by  no  necessity,  or  induced  by  feeble  rea- 
sons, becomes  the  scourge  of  mankind.  In  the  last  century, 

477 


368  OF   THE   RIGHT   OVER   ENEMIES'    PROPERTY. 

BOOK  m.  the  French  ravaged  and  burnt  the  Palatinate.*  All  Europe 
_CHAP.  ix.  resounded  witn  invectives  against  such  a  mode  of  waging  war. 
It  was  in  vain  that  the  court  attempted  to  palliate  their  con- 
duct, by  alleging  that  this  was  done  only  with  a  view  to  cover 
their  own  frontier : — that  was  an  end  to  which  the  ravaging 
of  the  Palatinate  contributed  but  little :  and  the  whole  pro- 
ceeding exhibited  nothing  to  the  eyes  of  mankind  but  the 
revenge  and  cruelty  of  a  haughty  and  unfeeling  minister. 
\  168.  What  For  whatever  cause  a  country  is  ravaged,  we  ought  to 
things  are  to  spare  those  edifices  which  do  honour  to  human  society,  and 
be  spared,  fo  nof.  contribute  to  increase  the  enemy's  strength, — such  as 
temples,  tombs,  public  buildings,  and  all  works  of  remarkable 
beauty.  What  advantage  is  obtained  by  destroying  them  ? 
It  is  declaring  one's  self  an  enemy  to  mankind,  thus  wantonly 
to  deprive  them  of  these  monuments  of  art  and  models  of 
taste ;  and  in  that  light  Belisarius  represented  the  matter  to 
Tottila,  king  of  the  Goths,  f  We  still  detest  those  barbarians 
who  destroyed  so  many  wonders  of  art,  when  they  overran 
the  Roman  empire.  However  just  the  resentment  with  which 
the  great  Gustavus  was  animated  against  Maximilian,  duke 
of  Bavaria,  he  rejected  with  indignation  the  advice  of  those 
who  wished  him  to  demolish  the  stately  palace  of  Munich, 
and  took  particular  care  to  preserve  that  admirable  structure. 
Nevertheless,  if  we  find  it  necessary  to  destroy  edifices  of 
that  nature  in  order  to  carry  on  the  operations  of  war,  or  to 
advance  the  works  in  a  siege,  we  have  an  undoubted  right  to 
take  such  a  step.  The  sovereign  of  the  country,  or  his 
general,  makes  no  scruple  to  destroy  them,  when  necessity  or 
the  maxims  of  war  require  it.  The  governor  of  a  besieged 
town  sets  fire  to  the  suburbs,  that  they  may  not  afford  a  lodg- 
ment to  the  besiegers.  Nobody  presumes  to  blame  a  general 
who  lays  waste  gardens,  vineyards,  or  orchards,  for  the  pur- 
pose of  encamping  on  the  ground,  and  throwing  up  an  en- 
trenchment. If  any  beautiful  production  of  art  be  thereby 
destroyed,  it  is  an  accident,  an  unhappy  consequence  of  the 
war;  and  the  general  will  not  be  blamed,  except  in  those 
cases  when  he  might  have  pitched  his  camp  elsewhere  without 
the  smallest  inconvenience  to  himself. 

3  169.  Bom-      In  bombarding  towns,  it  is  difficult  to  spare  the  finest  edi- 
barding       fices.     At  present  we  generally  content  ourselves  with  batter- 
towns.         jng  tne  ramparts  and  defences  of  a  place.     To  destroy  a  town 
with  bombs  and  red-hot  balls,  is  an  extremity  to  which  we  do 
not  proceed  without  cogent  reasons.     But  it  is  nevertheless 
warranted  by  the  laws  of  war,  when  we  are  unable  by  any 
other  mode  to  reduce  an  important  post,  on  which  the  suc- 
cess of  the  war  may  depend,  or  which  enables  the  enemy  to 

*  In  1674,  and  a  second  time,  much    is  quoted  by  Grotius,  lib.  iii.  cap.  xii. 
more  dreadfully,  in  1689.  g  ii.  note  xi. 

j-  See  his   letter  in  Procopius.      It 

478 


OF   THE   RIGHT    OVER    ENEMIES'    PROPERTY.  368 

annoy  us  in  a  dangerous  manner.     It  is  also  sometimes  prac-   BOOK  m. 
tised  when  we  have  no  other  means  of  forcing  an  enemy  to  CHAP' IX' 
make  war  with  humanity,  or  punishing  him  for  some  instance 
of  outrageous  conduct.     But  it  is  only  in  cases  of  the  last 
extremity,  and  with  reluctance,  that  good   princes   exert  a 
right  of  so  rigorous  a  nature.     In  the  year  1694,  the  English  [  369  ] 
bombarded  several  maritime  towns  of  France,  on  account  of 
the  great  injury  done  to  the  British  trade  by  their  privateers. 
But  the  virtuous  and  noble-minded  consort  of  William  the 
Third  did  not  receive  the  news  of  these  exploits  with  real 
satisfaction.      She  expressed  a  sensible   concern   that  war 
should  render  such  acts  of  hostility  necessary, — adding,  that 
she  hoped  such  operations  would  be  viewed  in  so  odious  a 
light,  as  to  induce  both  parties  to  desist  from  them  in  future.* 

Fortresses,  ramparts,  and  every  kind  of  fortification  are  §  170.   De- 
solely  appropriated  to  the  purposes  of  war :  and  in  a  just  moiition  of 
war,  nothing  is  more  natural,  nothing  more  justifiable,  than fortre8ses- 
to  demolish  those  which  we  do  not  intend  to  retain  in  our  own 
possession.     We  so  far  weaken  the  enemy,  and  do  not  involve 
an  innocent  multitude  in  the  losses  which  we  cause  him.    This 
was  the  grand  advantage  that  France  derived  from  her  vic- 
tories in  a  war  in  which  she  did  not  aim  at  making  conquests. 

Safe-guards  are  granted  to  lands  and  houses  intended  to  §  171.  Safe- 
be  spared,  whether  from  pure  favour,  or  with  the  proviso  of  guards, 
a  contribution.     These  consist  of  soldiers,  who  protect  them 
against  parties,  by  producing  the  general's  orders.     The  per- 
sons of  these  soldiers  must  be  considered  by  the  enemy  as 
sacred :  he  cannot  commit  any  hostilities  against  them,  since 
they  have  taken  their  station  there  as  benefactors,  and  for 
the  safety  of  his  subjects.     They  are  to  be  respected  in  the 
same  manner  as  an  escort  appointed  to  a  garrison,  or  to  pri- 
soners of  war,  on  their  return  to  their  own  country. 

What  we  have  advanced  is  sufficient  to  give  an  idea  of  the  §  172.   Ge- 
moderation  which  we  ought  to  observe,  even  in  the  most  just neral  ro|e  of 
war,  in  exerting  our  right  to  pillage  and  ravage  the  enemy's  ™°d*™^on 
country.     Except  the  single  case  in  which  there  is  question  thTevii1^ 
of  punishing  an  enemy,  the  whole  is  reducible  to  this  general  which  may 
rule. — All  damage  done  to  the  enemy  unnecessarily,  every be  done  to 
act  of  hostility  which  does  not  tend  to  procure  victory  and an  enemy* 
bring  the  war  to  a  conclusion,  is  a  licentiousness  condemned 
by  the  law  of  nature. 

But  this  licentiousness  is  unavoidably  suffered  to  pass  with  1 173.  Rule 
impunity,  and  to  a  certain  degree,  tolerated,  between  nation  of  the  v°- 
and  nation.     How  then  shall  we,  in  particular  cases,  deter-  Jj"^,^ 
mine  with  precision  to  what  lengths  it  was  necessary  to  carry  on  the  same 
hostilities,  in  order  to  bring  the  war  to  a  happy  conclusion  ?  subject 
And  even  if  the  point  could  be  exactly  ascertained,  nations 
acknowledge  no  common  judge:  each  forms  her  own  judg- 

*  Histoire  de  Gu'llaume  HL  liv.  vi.  torn.  ii.  p.  66. 

479 


369  OF   THE   RIGHT   OVER   ENEMIES'    PROPERTY. 

BOOK  in.    ment  of  the  conduct  she  is  to  pursue  in  fulfilling  her  duties. 

CHAP,  ix.  if  yOU  once  Open  a  door  for  continual  accusations  of  outrage- 
ous excess  in  hostilities,  you  will  only  augment  the  number 
of  complaints,  and  inflame  the  minds  of  the  contending  parties 
with  increasing  animosity :  fresh  injuries  will  be  perpetually 
springing  up ;  and  the  sword  will  never  be  sheathed  till  one 
[  370  ]  of  the  parties  be  utterly  destroyed.  The  whole,  therefore, 
should,  between  nation  and  nation,  be  confined  to  general 
rules,  independent  of  circumstances,  and  sure  and  easy  in  the 
application.  Now  the  rules  cannot  answer  this  description, 
unless  they  teach  us  to  view  things  in  an  absolute  sense, — to 
consider  them  in  themselves  and  in  their  own  nature.  As, 
therefore,  with  respect  to  hostilities  against  the  enemy's  per- 
son, the  voluntary  law  of  nations  only  prohibits  those  mea- 
sures which  are  in  themselves  unlawful  and  odious,  such  as 
poisoning,  assassination,  treachery,  the  massacre  of  an  enemy 
who  has  surrendered  and  from  whom  we  have  nothing  to 
fear, — so  the  same  law,  in  the  question  now  before  us,  con- 
demns every  act  of  hostility  which,  of  its  own  nature,  and  in- 
dependently of  circumstances,  contributes  nothing  to  the  suc- 
cess of  our  arms,  and  does  not  increase  our  strength  or 
weaken  that  of  the  enemy :  and,  on  the  other  hand,  it  per- 
mits or  tolerates  every  act  which  in  itself  is  naturally  adapted 
to  promote  the  object  of  the  war,  without  considering  whether 
such  act  of  hostility  was  unnecessary,  useless,  or  superfluous, 
in  that  particular  instance,  unless  there  be  the  clearest  evi- 
dence to  prove  that  an  exception  ought  to  have  been  made  in 
the  case  in  question :  for  where  there  is  positive  evidence,  the 
freedom  of  judgment  no  longer  exists.  Hence,  the  pillaging 
of  a  country,  or  ravaging  it  with  fire,  is  not,  in  a  general 
view  of  the  matter,  a  violation  of  the  laws  of  war :  but  if  an 
enemy  of  much  superior  strength  treats  in  this  manner  a 
town  or  province  which  he  might  easily  keep  in  his  possession 
as  a  means  of  obtaining  an  equitable  and  advantageous  peace, 
he  is  universally  accused  of  making  war  like  a  furious  barba- 
rian. Thus  the  wanton  destruction  of  public  monuments, 
temples,  tombs,  statues,  paintings,  &c.,  is  absolutely  con- 
demned, even  by  the  voluntary  law  of  nations,  as  never  be- 
ing conducive  to  the  lawful  object  of  war.  The  pillage  and 
destruction  of  towns,  the  devastation  of  the  open  country, 
ravaging,  setting  fire  to  houses,  are  measures  no  less  odious 
and  detestable  on  every  occasion  when  they  are  evidently  put 
in  practice  without  absolute  necessity,  or  at  least  very  cogent 
reasons.  But  as  the  perpetrators  of  such  outrageous  deeds 
might  attempt  to  palliate  them  under  pretext  of  deservedly 
punishing  the  enemy, — be  it  here  observed,  that  the  natural 
and  voluntary  law  of  nations  does  not  allow  us  to  inflict  such 
punishments,  except  for  enormous  offences  against  the  law  of 
nations :  and  even  then,  it  is  glorious  to  listen  to  the  voice 
of  humanity  and  clemency,  when  rigour  is  not  absolutely  ne- 


OF  FAITH   BETWEEN   ENEMIES.  370 

cessary.     Cicero  condemns  the  conduct  of  his  countrymen  in  BOOK  ra. 
destroying  Corinth  to  avenge  the  unworthy  treatment  offered  CHAP,  ix. 
to  the  Roman  ambassadors,  because  Rome  was  able  to  assert 
the  dignity  of  her  ministers  without  proceeding  to  such  ex- 
treme rigour. 


CHAP.  X.  [  371  ] 

OF  FAITH  BETWEEN  ENEMIES,— OF  STRATAGEMS,  ARTIFICES  IN    CHAP.  x. 
WAR,  SPIES,  AND    SOME   OTHER   PRACTICES. 

THE  faith  of  promises  and  treaties  is  the  basis  of  the  peace  §  174.  Faith 
of  nations,  as  we  have  shown  in  an  express  chapter  (Book  II.  |^e**cred 
Ch.  XV.)  It  is  sacred  among  men,  and  absolutely  essential  enemies. 
to  their  common  safety.  Are  we  then  dispensed  from  it  to- 
wards an  enemy  ?  To  imagine  that  between  two  nations  at 
war  every  duty  ceases,  every  tie  of  humanity  is  broken,  would 
be  an  error  equally  gross  and  destructive.  Men,  although  re- 
duced to  the  necessity  of  taking  up  arms  for  their  own  de- 
fence, and  in  support  of  their  rights,  do  not  therefore  cease  to 
be  men.  They  are  still  subject  to  the  same  laws  of  nature : — 
otherwise  there  would  be  no  laws  of  war.  Even  he  who  wages 
an  unjust  war  against  us  is  still  a  man :  we  still  owe  him  what- 
ever that  quality  requires  of  us.  But  a  conflict  arises  between 
our  duties  towards  ourselves,  and  those  which  connect  us  with 
other  men.  The  right  to  security  authorizes  us  to  put  in  prac- 
tice, against  this  unjust  enemy,  every  thing  necessary  for  re- 
pelling him,  or  bringing  him  to  reason.  But  all  those  duties, 
the  exercise  of  which  is  not  necessarily  suspended  by  this  con- 
flict, subsist  in  their  full  force :  they  are  still  obligatory  on  us, 
both  with  respect  to  the  enemy  and  to  all  the  rest  of  mankind. 
Now,  the  obligation  of  keeping  faith  is  so  far  from  ceasing  in 
time  of  war  by  virtue  of  the  preference  which  the  duties  to- 
wards ourselves  are  entitled  to,  that  it  then  becomes  more  ne- 
cessary than  ever.  There  are  a  thousand  occasions,  even  in 
the  course  of  the  war,  when,  in  order  to  check  its  rage,  and 
alleviate  the  calamities  which  follow  in  its  train,  the  mutual 
interest  and  safety  of  both  the  contending  parties  requires 
that  they  should  agree  on  certain  points.  What  would  be- 
come of  prisoners  of  war,  capitulating  garrisons,  and  towns 
that  surrender,  if  the  word  of  an  enemy  were  not  to  be  relied 
on  ?  War  would  degenerate  into  an  unbridled  and  cruel  licen- 
tiousness :  its  evils  would  be  restrained  by  no  bounds ;  and 
how  could  we  ever  bring  it  to  a  conclusion  and  re-establish 
peace  ?  If  faith  be  banished  from  among  enemies,  a  war  can 
never  be  terminated  with  any  degree  of  safety,  otherwise  than 
by  the  total  destruction  of  one  of  the  parties.  The  slightest 

61  2  Q  481 


371  OF   FAITH   BETWEEN   ENEMIES. 

BOOK  in.   difference,  the  least  quarrel,  would  produce  a  war  similar  to 
CHAP.  x-    that  of  Hannibal  against  the  Romans,  in  which  the  parties 
fought,  not  for  this  or  that  province,  not  for  sovereignty  or 
for  glory,  but  for  the  very  existence  of  their  respective  na- 
[  372  ]  tions.*    Thus  it  is  certain  that  the  faith  of  promises  and  trea- 
ties is  to  be  held  sacred  in  war  as  well  as  in  peace,  between 
enemies  as  well  as  between  friends.  (166) 

§  175.  What  The  conventions,  the  treaties  made  with  a  nation,  are  broken 
treaties  are  or  annulled  by  a  war  arising  between  the  contracting  parties, 
t0  b&Ab  e^ner  because  those  compacts  are  grounded  on  a  tacit  suppo- 
tw^n  ene-  sition  of  the  continuance  of  peace,  or  because  each  of  the  par- 
mies.  ties,  being  authorized  to  deprive  his  enemy  of  what  belongs  to 

him,  takes  from  him  those  rights  which  he  had  conferred  on 
him  by  treaty.  Yet  here  we  must  except  those  treaties  by 
which  certain  things  are  stipulated  in  case  of  a  rupture, — as, 
for  instance,  the  length  of  time  to  be  allowed  on  each  side  for 
the  subjects  of  the  other  nation  to  quit  the  country, — the  neu- 
trality of  a  town  or  province,  insured  by  mutual  consent,  &c. 
Since,  by  treaties  of  this  nature,  we  mean  to  provide  for  what 
shall  be  observed  in  case  of  a  rupture,  we  renounce  the  right 
of  cancelling  them  by  a  declaration  of  war. 

For  the  same  reason,  all  promises  made  to  an  enemy  in  the 
course  of  a  war  are  obligatory.  For  when  once  we  treat  with 
him  whilst  the  sword  is  unsheathed,  we  tacitly  but  necessarily 
renounce  all  power  of  breaking  the  compact  by  way  of  com- 
pensation or  on  account  of  the  war,  as  we  cancel  antecedent 
treaties,  otherwise  it  would  be  doing  nothing,  and  there  would 
be  an  absurdity  in  treating  with  the  enemy  at  all. 
§  176.  On  gut  conventions  made  during  a  war  are  like  all  other  com- 
Hon!  they"  Pacts  anc*  treaties,  of  which  the  reciprocal  observance  is  a  tacit 
may  be  condition  (Book  II.  §  202) :  we  are  no  longer  bound  to  observe 
broken.  them  towards  an  enemy  who  has  himself  been  the  first  to  vio- 
late them.  And  even  where  there  is  question  of  two  separate 
conventions  which  are  wholly  unconnected  with  each  other, — 
although  we  are  never  justifiable  in  using  perfidy  on  the  plea 
of  our  having  to  do  with  an  enemy  who  has  broken  his  word 
on  a  former  occasion,  we  may  nevertheless  suspend  the  effect 
of  a  promise  in  order  to  compel  him  to  repair  his  breach  of 
faith ;  and  what  we  have  promised  him  may  be  detained  by 
way  of  security,  till  he  has  given  satisfaction  for  his  perfidy. 
Thus,  at  the  taking  of  Namur,  in  1695,  the  King  of  England 
caused  Marshal  Boufflers  to  be  put  under  arrest,  and,  notwith- 
standing the  capitulation,  detained  him  prisoner,  for  the  pur- 
pose of  obliging  France  to  make  reparation  for  the  infractions 
of  the  capitulations  of  Dixmude  and  Deinse.f 

*  De  salute  certatum  est.  Britain  of  contracts  of  rantom,  consti- 

(166)  To  this  doctrine,  the  prohibi-  tute  exceptions,  post,  403—4  4.— C. 

tion    of  subjects  of  belligerent  states         |  Histoire  de  Guillaume  III.  torn.  ii. 

having  commercial  contracts  with  each  p.  148. 

other,   and   the   prohibition  in 


OF   FAITH   BETWEEN   ENEMIES. 


372 


Good-faith  consists  not  only  in  the  observance  of  our  pro-  BOOK  m. 
mises,  but  also  in  not  deceiving  on  such  occasions  as  lay  us  CHAP,  x. 
under  any  sort  of  obligation  to  speak  the  truth.  From  this  §  m  Of 
subject  arises  a  question  which  has  been  warmly  debated  in  iies. 
former  days,  and  which  appeared  not  a  little  intricate  at  a 
time  when  people  did  not  entertain  just  or  accurate  ideas  re- 
specting the  nature  of  a  lie.  Several  writers,  and  especially 
divines,  have  made  truth  a  kind  of  deity,  to  which,  for  its  own 
sake,  and  independently  of  its  consequences,  we  owe  a  certain 
inviolable  respect.  They  have  absolutely  condemned  every  [  373  ] 
speech  that  is  contrary  to  the  speaker's  thoughts :  they  have 
pronounced  it  to  be  our  duty,  on  every  occasion  when  we  can- 
not be  silent,  to  speak  the  truth  according  to  the  best  of  our 
knowledge,  and  to  sacrifice  to  their  divinity  our  dearest  in- 
terests rather  than  be  deficient  in  respect  to  her.  But  philo- 
terests,  of  more  accurate  ideas  and  more  profound  penetra- 
tion have  cleared  up  that  notion,  so  confused,  and  so  false  in  its 
consequences.  They  have  acknowledged  that  truth  in  general 
is  to  be  respected,  as  being  the  soul  of  human  society,  the  basis 
of  all  confidence  in  the  mutual  intercourse  of  men, — and,  con- 
sequently, that  a  man  ought  not  to  speak  an  untruth,  even 
in  matters  of  indifference,  lest  he  weaken  the  respect  due  to 
truth  in  general,  and  injure  himself  by  rendering  his  veracity 
questionable  even  when  he  speaks  seriously.  But  in  thus 
grounding  the  respect  due  to  truth  on  its  effects,  they  took  the 
right  road,  and  soon  found  it  easy  to  distinguish  between  the 
occasions  when  we  are  obliged  to  speak  the  truth,  or  declare 
our  thoughts,  and  those  when  there  exists  no  such  obligation. 
The  appellation  of  lies  is  given  only  to  the  words  of  a  man 
who  speaks  contrary  to  his  thoughts,  on  occasions  when  he  is 
under  an  obligation  to  speak  the  truth.  Another  name  (in 
Latin,  falsiloquium*)  is  applied  to  any  false  discourse  to  per- 
sons who  have  no  right  to  insist  on  our  telling  them  the  truth 
in  the  particular  case  in  question. 

These  principles  being  laid  down,  it  is  not  difficult  to  ascer- 
tain the  lawful  use  of  truth  or  falsehood  towards  an  enemy  on 
particular  occasions.  Whenever  we  have  expressly  or  tacitly 
engaged  to  speak  truth,  we  are  indispensably  obliged  to  it  by 
that  faith  of  which  we  have  proved  the  inviolability.  Such  is 
the  case  of  conventions  and  treaties : — it  is  indispensably  ne- 
cessary that  they  should  imply  a  tacit  engagement  to  speak 
the  truth  ;  for  it  would  be  absurd  to  allege  that  we  do  not  en- 
ter into  any  obligation  of  not  deceiving  the  enemy  under 
colour  of  treating  with  him  : — it  would  be  downright  mockery, 
— it  would  be  doing  nothing.  We  are  also  bound  to  speak  the 
truth  to  an  enemy  on  all  occasions  when  we  are  naturally 
obliged  to  it  by  the  laws  of  humanity, — that  is  to  say,  when- 
ever the  success  of  our  arms,  and  the  duties  we  owe  to  our- 

*  Falsiloquy,  false  speaking,  untruth,  falsehood. 

483 


373  OF  FAITH   BETWEEN   ENEMIES. 

BOOK  in.  selves,  do  not  clash  with  the  common  duties  of  humanity,  so 
CHAF-  *•  as  to  suspend  their  force  in  the  present  case,  and  dispense 
with  our  performance  of  them.  Thus,  when  we  dismiss  pri- 
soners, either  on  ransom  or  exchange,  it  would  be  infamous 
to  point  out  the  worst  road  for  their  march,  or  to  put  them  in 
a  dangerous  one :  and  should  the  hostile  prince  or  general  in- 
quire after  a  woman  or  child  who  is  dear  to  him,  it  would  be 
scandalous  to  deceive  him. 

§  178.  Stra-  But  when,  by  leading  the  enemy  into  an  error,  either  by 
tagems  and  wor(js  jn  which  we  are  not  obliged  to  speak  truth,  or  by  some 
war/6'  ^  fein^  we  can  gain  an  advantage  in  the  war,  which  it  would  be 
lawful  to  seek  by  open  force,  it  cannot  be  doubted  that  such 
[  374  ]  a  proceeding  is  perfectly  justifiable.  Nay,  since  humanity 
obliges  us  to  prefer  the  gentlest  methods  in  the  prosecution 
of  our  rights, — if,  by  a  stratagem,  by  a  feint  void  of  perfidy, 
we  can  make  ourselves  masters  of  a  strong  place,  surprise  the 
enemy,  and  overcome  him,  it  is  much  better,  it  is  really  more 
commendable,  to  succeed  in  this  manner,  than  by  a  bloody 
siege  or  the  carnage  of  a  battle.*  But  the  desire  to  spare  the 
effusion  of  blood  will  by  no  means  authorize  us  to  employ  per- 
fidy, the  introduction  of  which  would  be  attended  with  conse- 
quences of  too  dreadful  a  nature,  and  would  deprive  sove- 
reigns, once  embarked  in  war,  of  all  means  of  treating  to- 
gether, or  restoring  peace  (§  174). 

Deceptions  practised  on  an  enemy,  either  by  words  or 
actions,  but  without  perfidy, — snares  laid  for  him  consistent 
with  the  rights  of  war, — are  stratagems,  the  use  of  which  has 
always  been  acknowledged  as  lawful,  and  had  often  a  great 
share  in  the  glory  of  celebrated  commanders.  The  king  of 
England  (William  III.)  having  discovered  that  one  of  his  se- 
cretaries regularly  sent  intelligence  of  every  thing  to  the  hos- 
tile general,  caused  the  traitor  to  be  secretly  put  under  ar- 
rest, and  made  him  write  to  the  duke  of  Luxembourg  that  the 
next  day  the  allies  would  make  a  general  forage,  supported 
by  a  large  body  of  infantry  with  cannon :  and  this  artifice  he 

*  There  was  a  time  when  those  who  and  this  custom  is  more  consonant  to 
were  taken  in  attempting  to  surprise  a  reason  and  humanity.  Nevertheless, 
town,  were  put  to  death.  In  1597,  if  they  were  in  disguise,  or  had  em- 
prince  Maurice  attempted  to  take  Yen-  ployed  treachery,  they  would  be  treated 
loo  by  surprise :  the  attempt  failed ;  and  as  spies ;  and  this  is,  perhaps,  what 
some  of  his  men,  being  made  prisoners  Grotius  means  ;  for  I  do  not,  in  any 
on  the  occasion,  "  were  condemned  to  other  instance,  find  that  such  severity 
death, — the  mutual  consent  of  the  par-  was  used  towards  troops  who  were 
ties  having  introduced  that  new  rule,  simply  come  to  surprise  a  town  in  the 
in  order  to  obviate  dangers  of  this  silence  of  the  night.  It  would  be  quite 
kind."  (Grotius  Hist,  of  the  Disturb,  another  affair,  if  such  an  attempt  were 
in  the  Netherlands.)  Since  that  time,  made  in  a  time  of  profound  peace ;  and 
tho  rule  has  been  changed :  at  present,  the  Savoyards,  who  were  taken  in  the 
military  men  who  attempt  to  surprise  escalade  of  Geneva,  deserved  the  pu- 
a  town  in  time  of  open  war,  are  not,  nishment  of  death  which  was  inflicted 
in  case  of  being  taken,  treated  in  a  dif-  on  them.  [See  page  321.J 
ferent  manner  from  other  prisoners: 
484 


OF   FAITH    BETWEEN    ENEMIES.  374 

employed  for  the  purpose  of  surprising  the  French  army  at  BOOK  in. 
Steinkirk.     But,  through  the  activity  of  the  French  general,    CHAP.X. 
and  the  courage  of  his  troops,  though  the  measures  were  so 
artfully  contrived,  the  success  was  not  answerable.* 

In  the  use  of  stratagems,  we  should  respect  not  only  the 
faith  due  to  an  enemy,  but  also  the  rights  of  humanity,  and 
carefully  avoid  doing  things  the  introduction  of  which  would 
be  pernicious  to  mankind.  Since  the  commencement  of  hos- 
tilities between  France  and  England,  an  English  frigate  is  said 
to  have  appeared  off  Calais,  and  made  signals  of  distress,  with 
a  view  of  decoying  out  some  vessel,  and  actually  seized  a  boat 
and  some  sailors  who  generously  came  to  her  assistance.  (167) 
If  the  fact  be  true,  that  unworthy  stratagem  deserves  a  severe 
punishment.  It  tends  to  damp  a  benevolent  charity,  which  [  375  ] 
should  be  held  so  sacred  in  the  eyes  of  mankind,  and  which  is 
so  laudable  even  between  enemies.  Besides,  making  signals 
of  distress  is  asking  assistance,  and,  by  that  very  action,  pro- 
mising perfect  security  to  those  who  give  the  friendly  succour. 
Therefore  the  action  attributed  to  that  frigate  implies  an 
odious  perfidy. 

Some  nations  (even  the  Romans)  for  a  long  time  professed 
to  despise  every  kind  of  artifice,  surprise,  or  stratagem  in  war ; 
and  others  went  so  far  as  to  send  notice  of  the  time  and  place 
they  had  chosen  for  giving  battle,  f  In  this  conduct  there 
was  more  generosity  than  prudence.  Such  behaviour  would, 
indeed,  be  very  laudable,  if,  as  in  the  frenzy  of  duels,  the  only 
business  was  to  display  personal  courage".  But  in  war,  the  ob- 
ject is  to  defend  our  country,  and  by  force  to  prosecute  our 
rights  which  are  unjustly  withheld  from  us :  and  the  surest 
means  of  obtaining  our  end  are  also  the  most  commendable, 
provided  they  be  not  unlawful  and  odious  in  themselves. j 
The  contempt  of  artifice,  stratagem,  and  surprise,  proceeds 
often,  as  in  the  case  of  Achilles,  from  a  noble  confidence  in 
personal  valour  and  strength;  and  it  must  be  owned  that 
when  we  can  defeat  an  enemy  by  open  force,  in  a  pitched  bat- 
tle, we  may  entertain  a  better-grounded  belief  that  we  have 
subdued  him  and  compelled  him  to  sue  for  peace,  than  if  we 
had  gained  the  advantage  over  him  by  surprise, — as  Livy§ 
makes  those  generous  senators  say,  who  did  not  approve  of  the 
insincere  mode  of  proceeding  which  had  been  adopted  towards 

*  M6moires  de  Feuquieres,  torn.  iii.  which  proved  fatal  to  the  Trojans  :— 

P-  87.  Ille  non,  inclosus  equo  Minerva 

(167)  See   an   instance   of  similar  Sacra  mentito,  male  feriatos 

baseness,  Baumann,  1  Rob.  Rep.  245 ;  Troas,  et  Isetam  Priami  chords 

ante,  §  69,  page  321.— C.  Falleret  aulam ; 

f  This  was  the  practice  of  the  an-  Sed  palam  captis  gravis. 

cient  Gauls.   See  Livy. — It  is  said  of  Hor.  lib.  iv.  od.  6. 

Achilles,  that  he  was  for  fighting  open-  J  Virg.  JEn.  ii.  390. 

ly,  and  not  of  a  disposition  to  conceal  §  Tit.  Liv.  lib.  xlii.  cap.  47. 
himself  in  the  famous  wooden  horse, 

2q2  485 


375  OF  FAITH   BETWEEN   EMEMIES. 

BOOK  m.   Perseus.    Therefore,  when  plain  and  open  courage  can  secure 
CHAP-  x-    the  victory,  there  are  occasions  when  it  is  preferable  to  arti- 
fice, because  it  procures  to  the  state  a  greater  and  more  per- 
manent advantage. 

§179.  Spies.  The  employment  of  spies  is  a  kind  of  clandestine  practice 
or  deceit  in  war.  These  find  means  to  insinuate  themselves 
among  the  enemy,  in  order  to  discover  the  state  of  his  affairs, 
to  pry  into  his  designs,  and  then  give  intelligence  to  their  em- 
ployer. Spies  are  generally  condemned  to  capital  punish- 
ment, and  with  great  justice,  since  we  have  scarcely  any  other 
means  of  guarding  against  the  mischief  they  may  do  us(§  155). 
For  this  reason,  a  man  of  honour,  who  is  unwilling  to  expose 
himself  to  an  ignominious  death  from  the  hand  of  a  common 
executioner,  ever  declines  serving  as  a  spy ;  and,  moreover,  he 
looks  upon  the  office  as  unworthy  of  him,  because  it  cannot  be 
performed  without  some  degree  of  treachery.  The  sovereign, 
therefore,  has  no  right  to  require  such  a  service  of  his  sub- 
jects, unless,  perhaps,  in  some  singular  case,  and  that  of  the 
£  376  ]  highest  importance.  It  remains  for  him  to  hold  out  the  tempta- 
tion of  a  reward,  as  an  inducement  to  mercenary  souls  to  en- 
gage in  the  business.  If  those  whom  he  employs  make  a 
voluntary  tender  of  their  services,  or  if  they  be  neither  sub- 
ject to,  nor  in  any  wise  connected  with  the  enemy,  he  may 
unquestionably  take  advantage  of  their  exertions,  without  any 
violation  of  justice  or  honour.  But  is  it  lawful,  is  it  honour- 
able, to  solicit  the  enemy's  subjects  to  act  as  spies  and  betray 
him  ?  To  this  question  the  following  section  will  furnish  an 
answer. 

§  180.  Clan-  It  is  asked,  in  general,  whether  it  be  lawful  to  seduce  the 
destine  se-  enemy's  men,  for  the  purpose  of  engaging  them  to  transgress 
auction  of  ^  tneir  ^ty  by  an  infamous  treachery  ?  Here  a  distinction 
* must  ke  ma^e  between  wnat  is  due  to  the  enemy,  notwith- 
standing the  state  of  warfare,  and  what  is  required  by  the  in- 
ternal laws  of  conscience  and  the  rules  of  propriety.  We  may 
lawfully  endeavour  to  weaken  the  enemy  by  all  possible 
means  (§  138),  provided  they  do  not  affect  the  common  safety 
of  human  society,  as  do  poison  and  assassination  (§  155).  Now, 
in  seducing  a  subject  to  turn  spy,  or  the  governor  of  a  town 
to  deliver  it  up  to  us,  we  do  not  strike  at  the  foundation  of  the 
common  safety  and  welfare  of  mankind.  Subjects  acting  as 
spies  to  an  enemy,  do  not  cause  a  fatal  and  unavoidable  evil ; 
it  is  possible  to  guard  against  them  to  a  certain  degree ;  and 
as  to  the  security  of  fortresses,  it  is  the  sovereign's  business 
to  be  careful  in  the  choice  of  the  governors  to  whom  he  in- 
trusts them.  Those  measures,  therefore,  are  not  contrary  to 
the  external  law  of  nations ;  nor  can  the  enemy  complain  of 
them  as  odious  proceedings.  Accordingly,  they  are  practised 
in  all  wars.  But  are  they  honourable,  and  compatible  with 
the  laws  of  a  pure  conscience  ?  Certainly  no ;  and  of  this 
the  generals  themselves  are  sensible,  as  they  are  never  heard 

486 


OF   FAITH   BETWEEN   ENEMIES.  376 

to  boast  of  having  practised  them.  Seducing  a  subject  to  be-  BOOK  in. 
tray  his  country,  engaging  a  traitor  to  set  fire  to  a  magazine,  CHAP,  x. 
tampering  with  the  fidelity  of  a  governor,  enticing  him,  per- 
suading him  to  deliver  up  the  town  intrusted  to  his  charge, 
is  prompting  such  persons  to  commit  detestable  crimes.  Is  it 
honourable  to  corrupt  our  most  inveterate  enemy,  and  tempt 
him  to  the  commission  of  a  crime  ?  If  such  practices  are  at 
all  excusable,  it  can  be  only  in  a  very  just  war,  and  when  the 
immediate  object  is  to  save  our  country,  when  threatened  with 
ruin  by  a  lawless  conqueror.  On  such  an  occasion  (as  it 
should  seem)  the  guilt  of  the  subject  or  general  who  should 
betray  his  sovereign  when  engaged  in  an  evidently  unjust 
cause,  would  not  be  of  so  very  odious  a  nature.  He  who  him- 
self tramples  upon  justice  and  probity,  deserves  in  his  turn  to 
feel  the  effects  of  wickedness  and  perfidy.*  And  if  ever  it  is 
excusable  to  depart  from  the  strict  rules  of  honour,  it  is  against  [  377  ] 
such  an  enemy  and  in  such  an  extremity.  The  Romans, 
whose  ideas  concerning  the  rights  of  war  were,  in  general,  so 
pure  and  elevated,  did  not  approve  of  such  clandestine  prac- 
tices. They  made  no  account  of  the  consul  Caepio's  victory 
over  Viriatus,  because  it  had  been  obtained  by  means  of  bri- 
bery. Valerius  Maximus  asserts  that  it  was  stained  with  a 
double  perfidy f ;  and  another  historian  says  that  the  senate 
did  not  approve  of  it.J 

It  is  a  different  thing  merely  to  accept  of  the  offers  of  a  §181.  Whe- 
traitor.    We  do  not  seduce  him :  and  we  may  take  advantage  ^^  of~ 
of  his  crime,  while  at  the  same  time  we  detest  it.     Fugitives  "^T  may 
and  deserters  commit  a  crime  against  their  sovereign ;  yet  we  be  accepted, 
receive  and  harbour  them  by  the  rights  of  war,  as  the  civil  law 
expresses  it.§    If  a  governor  sells  himself,  and  offers  for  a  sum 
of  money  to  deliver  up  his  town,  shall  we  scruple  to  take  ad- 
vantage of  his  crime,  and  to  obtain  without  danger  what  we 
have  a  right  to  take  by  force  ?     But,  when  we  feel  ourselves 
able  to  succeed  without  the  assistance  of  traitors,  it  is  noble 

*  Xenophon  very  properly  expresses  quod  eorum  manibus  interemptus  est ; 
the  reasons  which  render  treachery  de-  in  Q.  Servilio  Csepione  consule,  quia  is 
testable,  and  which  authorize  us  to  re-  sceleris  hujus  auctor,  impunitate  pro- 
press  it  by  other  means  than  open  missa,  fuit,  victoriamque  non  meruit, 
force.  «  Treachery,"  says  he,  « is  more  sed  emit.— Lib.  ix.  cap.  6.— Although 
dreadful  than  open  war,  in  proportion  this  instance  seems  to  belong  to  an- 
as it  is  more  difficult  to  guard  against  other  head  (that  of  assassination),  I 
clandestine  plots  than  against  an  open  nevertheless  quote  it  here,  because  it 
attack :  it  is  also  more  odious,  because  does  not  appear,  from  other  authors, 
men  engaged  in  overt  hostilities  may  that  Csepio  had  induced  Viriatus's  sol- 
again  treat  together,  and  come  to  a  diers  to  assassinate  him.  Among  others, 
sincere  reconciliation ;  whereas  nobody  see  Eutropius,  lib.  vi.  cap.  8. 
can  venture  to  treat  with  or  repose  J  Qu®  victoria,  quia  empta  erat,  a 
any  confidence  in  a  man  whom  he  has  senatu  non  probata.  Auctor  de  Viris 
once  found  guilty  of  treachery." — Hist.  Illust.  cap.  71. 
Grsec.  lib.  ii.  cap.  3.  §  Transfugam  jure  belli  recipimus. 

t  Viriati  etiam  csedes  duplicem  per-  Digest.  1.  xli.    tit.  1,  de   adquir.  Rer. 

fidiae  accusationem  recepit;  in  amicis,  Dom.  leg.  51. 

487 


377  OF   FAITH    BETWEEN    ENEMIES. 

BOOK  in.  to  reject  their  offers  with  detestation.  The  Romans,  in  their 
CHAP-  *•  heroic  ages,  in  those  times  when  they  used  to  display  such 
illustrious  examples  of  magnanimity  and  virtue,  constantly  re- 
jected with  indignation  every  advantage  presented  to  them 
by  the  treachery  of  any  of  the  enemy's  subjects.  They  not 
only  acquainted  Pyrrhus  with  the  atrocious  design  of  his  phy- 
sician, but  also  refused  to  take  advantage  of  a  less  heinous 
crime,  and  sent  back  to  the  Falisci,  bound  and  fettered,  a  trai- 
tor who  had  offered  to  deliver  up  the  king's  children.* 

But  when  intestine  divisions  prevail  among  the  enemy,  we 
may  without  scruple  hold  a  correspondence  with  one  of  the 
parties,  and  avail  ourselves  of  the  right  which  they  think  they 
have  to  injure  the  opposite  party.  Thus,  we  promote  our  own 
interests,  without  seducing  any  person,  or  being  in  anywise 
partakers  of  his  guilt.  If  we  take  advantage  of  his  error, 
this  is  doubtless  allowable  against  an  enemy. 

§  182.  De-  Deceitful  intelligence  is  that  of  a  man  who  feigns  to  betray 
tem^ence  ^"8  own  party,  with  a  view  of  drawing  the  enemy  into  a  snare. 
If  he  does  this  deliberately,  and  has  himself  made  the  first 
[  378  J  overtures,  it  is  treachery,  and  an  infamous  procedure  :  but  an 
officer,  or  the  governor  of  a  town,  when  tampered  with  by  the 
enemy,  may,  on  certain  occasions,  lawfully  feign  acquiescence 
to  the  proposal  with  a  view  to  deceive  the  seducer :  an  insult 
is  offered  to  him  in  tempting  his  fidelity ;  and  to  draw  the 
tempter  into  the  snare,  is  no  more  than  a  just  vengeance.  By 
this  conduct  he  neither  violates  the  faith  of  promises  nor  im- 
pairs the  happiness  of  mankind :  for  criminal  engagements 
are  absolutely  void,  and  ought  never  to  be  fulfilled ;  and  it 
would  be  a  fortunate  circumstance  if  the  promises  of  traitors 
could  never  be  relied  on,  but  were  on  all  sides  surrounded 
with  uncertainties  and  dangers.  Therefore  a  superior,  on  in- 
formation that  the  enemy  is  tempting  the  fidelity  of  an  officer 
or  soldier,  makes  no  scruple  of  ordering  that  subaltern  to 
feign  himself  gained  over,  and  to  arrange  his  pretended 
treachery  so  as  to  draw  the  enemy  into  an  ambuscade.  The 
subaltern  is  obliged  to  obey.  But  when  a  direct  attempt  is 
made  to  seduce  the  commander-in-chief,  a  man  of  honour 
generally  prefers,  and  ought  to  prefer,  the  alternative  of  ex- 
plicitly and  indignantly  rejecting  so  disgraceful  a  proposal.f 

*  Eadem  fide  indicatum  Pyrrho  regi  stance,  received  orders  from  him  to 

medicum  vita;  ejus  insidiantem ;  eudem  feign  acquiescence  ;  and,  accordingly, 

Faliscis  vinctum  traditum  proditorem  having  made  all  their  arrangements 

liberorum  regis.  Tit.Liv.lib.xlii.cap.47.  with  the  duke  of  Parma  for  the  sur- 

f  When  the  duke  of  Parma  was  en-  prisal  of  the  fort,  they  gave  notice  of 
gaged  in  the  siege  of  Bergen-op-zoom,  every  particular  to  the  governor.  He, 
two  Spanish  prisoners,  who  were  con-  in  consequence,  kept  himself  prepared 
fined  in  a  fort  near  the  town,  attempted  to  give  a  proper  reception  to  the  Spa- 
to  gain  over  a  tavern-keeper,  and  an  niards,  who  fell  into  the  snare,  and  lost 
English  soldier,  to  betray  that  fort  to  near  three  thousand  men  on  the  occa- 
the  duke.  These  men,  having  ac-  sion. — Grotius,  Hist,  of  the  Disturb,  in 
quainted  the  governor  with  the  circuin-  the  Netherlands,  book  i. 


OF   THE   SOVEREIGN  WAGING   UNJUST  WAK.  378 


CHAP.  XI. 

OF  THE   SOVEREIGN  WHO   WAGES  AN   UNJUST  WAR. 

HE  who  is  engaged  in  war  derives  all  his  right  from  the  § !.83'  An 
justice  of  his  cause.     The  unjust  adversary  who  attacks  or  u^iust  ^ 
threatens  him, — who  withholds  what  belongs  to  him, — in  a  ^ght  what- 
word,  who  does  him  an  injury, — lays  him  under  the  necessity  ever, 
of  defending  himself,  or  of  doing  himself  justice,  by  force  of 
arms  ;  he  authorizes  him  in  all  the  acts  of  hostility  necessary 
for  obtaining  complete  satisfaction.    Whoever  therefore  takes 
up  arms  without  a  lawful  cause,  can  absolutely  have  no  right 
whatever :  every  act  of  hostility  that  he  commits  is  an  act 
of  injustice. 

He  is  chargeable  with  all  the  evils,  all  the  horrors  of  the  §184.  Great 
war :  all  the  effusion  of  blood,  the  desolation  of  families,  the  &uilt  °/ the 
rapine,  the  acts  of  violence,  the  ravages,  the  conflagrations,  ^cTunder- 
are  his  works  and  his  crimes.    He  is  guilty  of  a  crime  against  Jakes  it. 
the  enemy,  whom  he  attacks,  oppresses,  and  massacres  with- 
out cause :  he  is  guilty  of  a  crime  against  his  people,  whom 
he  forces  into  acts  of  injustice,  and  exposes  to  danger,  without 
reason  or  necessity, — against  those  of  his  subjects  who  are  £  379  ] 
ruined  or  distressed  by  the  war, — who  lose  their  lives,  their 
property,  or  their  health,  in  consequence  of  it :  finally,  he  is 
guilty  of  a  crime  against  mankind  in  general,  whose  peace  he 
disturbs,  and  to  whom  he  sets  a  pernicious  example.    Shocking 
catalogue  of  miseries  and  crimes !  dreadful  account  to  be  given 
to  the  King  of  kings,  to  the  common  Father  of  men  !     May 
this  slight  sketch  strike  the  eyes  of  the  rulers  of  nations, — of 
princes  and  their  ministers  !     Why  may  not  we  expect  some 
benefit  from  it  ?   Are  we  to  suppose  that  the  great  are  wholly 
lost  to  all  sentiments  of  honour,  of  humanity,  of  duty,  and  of 
religion  ?    And,  should  our  weak  voice,  throughout  the  whole 
succession  of  ages,  prevent  even  one  single  war,  how  gloriously 
would  our  studies  and  our  labour  be  rewarded  ! 

He  who  does  an  injury  is  bound  to  repair  the  damage,  or  to  §  185.  His 
make  adequate  satisfaction  if  the  evil  be  irreparable,  and  even  obligations, 
to  submit  to  punishment,  if  the  punishment  be  necessary,  either 
as  an  example,  or  for  the  safety  of  the  party  offended,  and  for 
that  of  human  society.  In  this  predicament  stands  a  prince 
who  is  the  author  of  an  unjust  war.  He  is  under  an  obliga- 
tion to  restore  whatever  he  has  taken, — to  send  back  the 
prisoners  at  his  own  expense, — to  make  compensation  to  the 
enemy  for  the  calamities  and  losses  he  has  brought  on  him, — 
to  reinstate  ruined  families, — to  repair,  if  it  were  possible,  the 
loss:  f  a  father,  a  son,  a  husband. 


379  OF  THE   SOVEREIGN  WAGING   UNJUST  WAR. 

BOOK  in.       But  how  can  he  repair  so  many  evils  ?     Many  are  in  their 
CHAP,  xi.  own  nature  irreparable.    And  as  to  those  which  may  he  com- 
§  186.  Dif-  pensated  by  an  equivalent,  where  shall  the  unjust  warrior 
ficulty  of  re-  find  means  to  furnish  an  indemnification  for  all  his  acts  of  vio- 
?nTuryghlhC  lence  ?   The  prince's  private  property  will  not  be  sufficient  to 
has  done,     answer  the  demands.     Shall* he  give  away  that  of  his  sub- 
jects ? — It  does  not  belong  to  him.     Shall  he  sacrifice  the  na- 
tional lands,  a  part  of  the  state  ? — But  the  state  is  not  his 
patrimony  (Book  I.  §  91) :  he  cannot  dispose  of  it  at  will. 
And,  although  the  nation  be,  to  a  certain  degree,  responsible 
for  the  acts  of  her  ruler, — yet  (exclusive  of  the  injustice  of 
punishing  her  directly  for  faults  of  which  she  is  not  guilty), 
if  she  is  responsible  for  her  sovereign's  acts,  that  responsibility 
only  regards  other  nations,  who  look  to  her  for  redress  (Book  I. 
§  40,  Book  II.  §§  81,  82) :  but  the  sovereign  cannot  throw 
upon  her  the  punishment  due  to  his  unjust  deeds,  nor  despoil 
her  in  order  to  make  reparation  for  them.    And,  were  it  even 
in  his  power,  would  this  wash  away  his  guilt  and  leave  him  a 
clear  conscience  ?   Though  acquitted  in  the  eyes  of  the  enemy, 
would  he  be  so  in  the  eyes  of  his  people  ?   It  is  a  strange  kind 
of  justice  which  prompts  a  man  to  make  reparation  for  his 
own  misdeeds  at  the  expense  of  a  third  person :  this  is  no  more 
than  changing  the  object  of  his  injustice.     Weigh  all  these  » 
things,  ye  rulers  of  nations  !  and,  when  clearly  convinced  that 
[  380  ]  an  unjust  war  draws  you  into  a  multitude  of  iniquities  which 
all  your  power  cannot  repair,  perhaps  you  will  be  less  hasty 
to  engage  in  it. 

§187.  Whe-  The  restitution  of  conquests,  of  prisoners,  and  of  all  pro- 
ther  the  na-  perty  that  still  exists  in  a  recoverable  state,  admits  of  no 
m°ilitar^  Ire  doubt  wlien  the  injustice  of  tne  war  is  acknowledged.  The 
bound  to  nation  in  her  aggregate  capacity,  and  each  individual  parti- 
any  thing,  cularly  concerned,  being  convinced  of  the  injustice  of  their 
possession,  are  bound  to  relinquish  it,  and  to  restore  every 
thing  which  they  have  wrongfully  acquired.  But,  as  to  the 
reparation  of  any  damage,  are  the  military,  the  generals,  of- 
ficers and  soldiers,  obliged  in  conscience  to  repair  the  injuries 
which  they  have  done,  not  of  their  own  will,  but  as  instru- 
ments in  the  hands  of  their  sovereign  ?  I  am  surprised  that 
the  judicious  Grotius  should,  without  distinction,  hold  the  af- 
firmative.* It  is  a  decision  which  cannot  be  supported,  ex- 
cept in  the  case  of  a  war  so  palpably  and  indisputably  unjust, 
as  not  to  admit  a  presumption  of  any  secret  reason  of  state 
that  is  capable  of  justifying  it, — a  case  in  politics  which  is 
nearly  impossible.  On  all  occasions  susceptible  of  doubt,  the 
whole  nation,  the  individuals,  and  especially  the  military,  are 
to  submit  their  judgment  to  those  who  hold  the  reins  of  go- 
vernment,— to  the  sovereign :  this  they  are  bound  to  do  by 
the  essential  principles  of  political  society,  and  of  govern- 

*  De  Jure  Belli  et  Pacis,  lib.  iii.  cap.  x. 


OF  THE   EFFECTS   OF  REGULAR  WAR.  380 

ment.  What  would  be  the  consequence,  if,  at  every  step  of  BOOK  in. 
the  sovereign,  the  subjects  were  at  liberty  to  weigh  the  justice  CHAP.XI. 
of  his  reasons,  and  refuse  to  march  to  a  war  which  might  to 
them  appear  unjust  ?  It  often  happens  that  prudence  will 
not  permit  a  sovereign  to  disclose  all  his  reasons.  It  is  the 
duty  of  subjects  to  suppose  them  just  and  wise,  until  clear 
and  absolute  evidence  tells  them  the  contrary.  When,  there- 
fore, under  the  impression  of  such  an  idea,  they  have  lent 
their  assistance  in  a  war  which  is  afterwards  found  to  be  unjust, 
the  sovereign  alone  is  guilty :  he  alone  is  bound  to  repair  the 
injuries.  The  subjects,  and  in  particular  the  military,  are  ^ 

innocent :  they  have  acted  only  from  a  necessary  obedience. 
They  are  bound,  however,  to  deliver  up  what  they  have  ac- 
quired in  such  a  war,  because  they  have  no  lawful  title  to 
possess  it.  This  I  believe  to  be  the  almost  unanimous  opinion 
of  all  honest  men,  and  of  those  officers  who  are  most  distin- 
guished for  honour  and  probity.  Their  case,  in  the  present 
instance,  is  the  same  as  that  of  all  those  who  are  the  executors 
of  the  sovereign's  orders.  Government  would  be  impracticable 
if  every  one  of  its  instruments  was  to  weigh  its  commands, 
and  thoroughly  canvass  their  justice  before  he  obeyed  them. 
But,  if  they  are  bound  by  a  regard  for  the  welfare  of  the  state 
^to  suppose  the  sovereign's  orders  just,  they  are  not  responsible 
for  them. 


CHAP.  XII.  [  381  ] 

OF    THE  VOLUNTARY    LAW  OF  NATIONS,   AS    IT   REGARDS   THE   CHAP.  xii. 
EFFECTS   OF    REGULAR  WARFARE,    INDEPENDENTLY   OF    THE  ~~ 
JUSTICE   OF   THE   CAUSE. 

ALL  the  doctrines  we  have  laid  down  in  the  preceding  §  188.  Na- 
chapter  are  evidently  deduced  from  sound  principles, — from  ti^B  not 
the  eternal  rules  of  justice :  they  are  so  many  separate  articles  "£ce7he 
of  that  sacred  law,  which  nature,  or  the  Divine  Author  of  Lwofnar 
nature,  has  prescribed  to  nations.     He  alone  whom  justice  ture  against 
and  necessity  have  armed,  has  a  right  to  make  war ;  he  alone  each  otlier' 
is  empowered  to  attack  his  enemy,  to  deprive  him  of  life,  and 
wrest  from  him  his  goods  and  possessions.     Such  is  the  deci- 
sion of  the  necessary  law  of  nations,  or  of  the  law  of  nature, 
which  nations  are  strictly  bound  to  observe  (Prelim.  §  7) :  it 
is  the  inviolable  rule  that  each  ought  conscientiously  to  follow. 
But,  in  the  contests  of  nations  and  sovereigns  who  live  together 
in  a  state  of  nature,  how  can  this  rule  be  enforced  ?     They 
acknowledge  no  superior.     Who  then  shall  be  judge  between 
them,  to  assign  to  each  his  rights  and  obligations, — to  say  to 
the  one,  "  You  have  a  right  to  take  up  arms,  to  attack  your 

491 


381  OF  THE  VOLUNTARY  LAW  OF  NATIONS. 

BOOK  in.  enemy,  and  subdue  him  by  force ;" — and  to  the  other,  "  Every 
CHAP,  xn.  act  Of  hostility  that  you  commit  will  be  an  act  of  injustice ; 
your  victories  will  be  so  many  murders,  your  conquests  rapines 
and  robberies?"  Every  free  and  sovereign  state  has  a  right 
to  determine,  according  to  the  dictates  of  her  own  conscience, 
what  her  duties  require  of  her,  and  what  she  can  or  cannot 
do  with  justice  (Prelim.  §  16).  If  other  nations  take  upon 
themselves  to  judge  of  her  conduct,  they  invade  her  liberty, 
and  infringe  her  most  valuable  rights  (Prelim.  §  15) :  and, 
moreover,  each  party,  asserting  that  they  have  justice  on  their 
own  side,  will  arrogate  to  themselves  all  the  rights  of  war, 
and  maintain  thai,  their  enemy  has  none,  that  his  hostilities 
are  so  many  acts  of  robbery,  so  many  infractions  of  the  law 
of  nations,  in  the  punishment  of  which  all  states  should  unite. 
The  decision  of  the  controversy,  and  of  the  justice  of  the 
cause,  is  so  far  from  being  forwarded  by  it,  that  the  quarrel 
will  become  more  bloody,  more  calamitous  in  its  effects,  and 
also  more  difficult  to  terminate.  Nor  is  this  all :  the  neutral 
nations  themselves  will  be  drawn  into  the  dispute,  and  involved 
in  the  quarrel.  If  an  unjust  war  cannot,  in  its  effect,  confer 
any  right,  no  certain  possession  can  be  obtained  of  any  thing 
taken  in  war,  until  some  acknowledged  judge  (and  there  is 
none  such  between  nations)  shall  have  definitively  pronounced 
[  382  ]  concerning  the  justice  of  the  cause :  and  things  so  acquired 
will  ever  remain  liable  to  be  claimed,  as  property  carried  off 
by  robbers. 

§  189.  Why  Let  us  then  leave  the  strictness  of  the  necessary  law  of 
they  ought  nature  to  the  conscience  of  sovereigns  ;  undoubtedly  they  are 
to  admit  never  allowed  to  deviate  from  it.  But,  as  to  the  external 
tar/lavTof  en~ects  of  the  law  among  men,  we  must  necessarily  have  re- 
nations,  course  to  rules  that  shall  be  more  certain  and  easy  in  the 
application,  and  this  for  the  very  safety  and  advantage  of  the 
great  society  of  mankind.  These  are  the  rules  of  the  volun- 
tary law  of  nations  (Prelim.  §  21).  The  law  of  nature,  whose 
object  it  is  to  promote  the  welfare  of  human  society,  and  to 
protect  the  liberties  of  all  nations, — which  requires  that  the 
affairs  of  sovereigns  should  be  brought  to  an  issue,  and  their 
quarrels  determined  and  carried  to  a  speedy  conclusion, — that 
law,  I  say,  recommends  the  observance  of  the  voluntary  law 
of  nations,  for  the  common  advantage  of  states,  in  the  same 
manner  as  it  approves  of  the  alterations  which  the  civil  law 
makes  in  the  rules  of  the  law  of  nature,  with  a  view  to  render 
them  more  suitable  to  the  state  of  political  society,  and  more 
easy  and  certain  in  their  application.  Let  us,  therefore, 
apply  to  the  particular  subject  of  war  the  general  observation 
made  in  our  Preliminaries  (§  28)— a  nation,  a  sovereign,  when 
deliberating  on  the  measures  he  is  to  pursue  in  order  to  fulfil 
his  duty,  ought  never  to  lose  sight  of  the  necessary  law,  whose 
obligation  on  the  conscience  is  inviolable  :  but  in  examining 
what  he  may  require  of  other  states,  he  ought  to  pay  a  defer- 

492 


OF   THE   EFFECTS   OF   REGULAR  WAR.  382 

ence  to  the  voluntary  law  of  nations,  and  restrict  even  his  BOOK  in. 
just  claims  by  the  rules  of  that  law,  whose  maxims  have  for  CHAP-  xri- 
their  object  the  happiness  and  advantage  of  the  universal 
society  of  nations.     Though  the  necessary  law  be  the  rule 
which  he  invariably  observes  in  his  own  conduct,  he  should 
allow  others  to  avail  themselves  of  the  voluntary  law  of 
nations. 

The  first  rule  of  that  law,  respecting  the  subject  under  §  190.  Re- 
consideration,  is,  that  regular  war,  as  to  its  effects,  is  to  be  eular  .war» 
accounted  just  on  both  sides.     This  is  absolutely  necessary,  ^g-^*8^  to 
as  we  have  just  shown,  if  people  wish  to  introduce  any  order,  be  Account- 
any  regularity,  into  so  violent  an  operation  as  that  of  arms,  ed  just  on 
or  to.  set  any  bounds  to  the  calamities  of  which  it  is  produc-  botn  sides- 
tive,  and  leave  a  door  constantly  open  for  the  return  of  peace. 
It  is  even  impossible  to  point  out  any  other  rule  of  conduct 
to  be  observed  between  nations,  since  they  acknowledge  no 
superior  judge. 

Thus,  the  rights  founded  on  the  state  of  war,  the  lawfulness 
of  its  effects,  the  validity  of  the  acquisitions  made  by  arms, 
do  not,  externally  and  between  mankind,  depend  on  the  justice 
of  the  cause,  but  on  the  legality  of  the  means  in  themselves,  — 
that  is,  on  every  thing  requisite  to  constitute  a  regular  war. 
If  the  enemy  observes  all  the  rules  of  regular  warfare  (see 
Chap.  III.  of  this  Book),  we  are  not  entitled  to  complain  of 
him  as  a  violator  of  the  law  of  nations.  He  has  the  same 
pretensions  to  justice  as  we  ourselves  have  ;  and  all  our  re- 
source lies  in  victory  or  an  accommodation. 

Second  rule.  —  The  justice  of  the  cause  being  reputed  equal  §  191. 
between  two  enemies,  whatever  is  permitted  to  the  one  in  virtue  Whatever  w 
of  the  state  of  war,  is  also  permitted  to  the  other.     Accord-  ^mi^f  £ 
ingly,  no  nation,  under  pretence  of  having  justice  on  her  side,  s"eto  the  ' 
ever  complains  of  the  hostilities  of  her  enemy,  while  he  con-  other. 
fines  them  within  the  limits  prescribed  by  the  common  laws  [  383  ] 
of  war.     We  have,  in  the  preceding  chapters,  treated  of  what 
is  allowable  in  a  just  war.     It  is  precisely  that,  and  no  more, 
which  the  voluntary  law  equally  authorizes  in  both  parties. 
That  law  puts  things  between  both  on  a  parity,  but  allows  to 
neither  what  is  in  itself  unlawful  :  it  can  never  countenance 
unbridled   licentiousness.     If,  therefore,  nations  transgress 
those  bounds,  —  if  they  carry  hostilities  beyond  what  the  inter- 
nal and  necessary  law  permits  in  general  for  the  support  of  a 
just  cause,  —  far  be  it  from  us  to  attribute  these  excesses  to  the 
voluntary  law  of  nations  :  they  are  solely  imputable  to  a 
depravation  of  manners,  which  produces  an  unjust  and  barba- 
rous custom.     Such  are  those  horrid  enormities  sometimes 
committed  by  the  soldiery  in  a  town  taken  by  storm. 


3.  We  must  never  forget  that  this  voluntary  law  of  nations,  §  192.  The 
which  is  admitted  only  through  necessity,  and  with  a  view  to  wiuntaiy 
avoid  greater  evils  (§§  188,  189),  does  not,  to  him  who  takesl™ 
up  arms  in  an  unjust  cause,  give  any  real  right  that  is  capable 

2R  493 


383  OF   THE   VOLUNTARY  LAW   OF   NATIONS. 

BOOK  in.   of  justifying  his  conduct  and  acquitting  his  conscience,  but 
L_  merely  entitles  him  to  the  benefit  of  the  external  effect  of  the 


impunity  to  law,  and  to  impunity  among  mankind.  This  sufficiently 
him  who  appears  from  what  we  have  said  in  establishing  the  voluntary 
uiX  vTar  *aw  °^  nati°ns>  ^he  sovereign,  therefore,  whose  arms  are  not 
sanctioned  by  justice,  is  not  the  less  unjust,  or  less  guilty  of 
violating  the  sacred  law  of  nature,  although  that  law  itself 
(with  a  view  to  avoid  aggravating  the  evils  of  human  society 
by  an  attempt  to  prevent  them)  requires  that  he  be  allowed 
to  enjoy  the  same  external  rights  as  justly  belong  to  his 
enemy.  In  the  same  manner,  the  civil  law  authorizes  a  debtor 
to  refuse  payment  of  his  debts  in  a  case  of  prescription  :  but 
he  then  violates  his  duty  :  he  takes  advantage  of  a  law  which 
was  enacted  with  a  view  to  prevent  the  endless  increase  of 
lawsuits ;  but  his  conduct  is  not  justifiable  upon  any  grounds 
of  genuine  right. 

From  the  unanimity  that  in  fact  prevails  between  states  in 
observing  the  rules  which  we  refer  to  the  voluntary  law  of 
nations,  Grotius  assumes  for  their  foundation  an  actual  con- 
sent on  the  part  of  mankind,  and  refers  them  to  the  arbitrary 
law  of  nations.  But,  exclusive  of  the  difficulty  which  would 
often  occur  in  proving  such  agreement,  it  would  be  of  no 
validity  except  against  those  who  had  formerly  entered  into 
it.  If  such  an  engagement  existed,  it  would  belong  to  the 
conventional  law  of  nations,  which  must  be  proved  by  history, 
not  by  argument,  and  is  founded  on  facts,  not  on  principles. 
In  this  work  we  lay  down  the  natural  principles  of  the  law  of 
nations.  We  deduce  them  from  nature  itself;  and  what  we 
call  the  voluntary  law  of  nations  consists  in  rules  of  conduct 
and  of  external  right,  to  which  nations  are,  by  the  law  of 
nature,  bound  to  consent ;  so  that  we  are  authorized  to  pre- 
sume their  consent,  without  seeking  for  a  record  of  it  in  the 
[  384  ]  annals  of  the  world ;  because,  even  if  they  had  not  given  it, 
the  law  of  nature  supplies  their  omission,  and  gives  it  for 
them.  In  this  particular,  nations  have  not  the  option  of 
giving  or  withholding  their  consent  at  pleasure :  the  refusal 
to  give  it  would  be  an  infringement  of  the  common  rights  of 
nations  (Prelim.  §  21). 

This  voluntary  law  of  nations,  thus  established,  is  of  very 
extensive  use,  and  is  far  from  being  a  chimera,  an  arbitrary 
or  groundless  fiction.  It  flows  from  the  same  source,  and 
is  founded  on  the  same  principles,  with  the  natural  and  neces- 
sary law.  For  what  other  reason  does  nature  prescribe  such 
and  such  rules  of  conduct  to  men,  except  because  those  rules 
are  necessary  to  the  safety  and  welfare  of  mankind  ?  But 
the  maxims  of  the  necessary  law  of  nations  are  founded  imme- 
diately on  the  nature  of  things,  and  particularly  on  that  of 
man,  and  of  political  society.  The  voluntary  law  of  nations 
supposes  an  additional  principle, — the  nature  of  the  great 
society  of  nations,  and  of  their  mutual  intercourse.  The 

494 


OP  ACQUISITIONS  BY  WAR,   ETC.  384 

necessary  law  enjoins  to  nations  what  is  absolutely  indispen-  BOOK  m 
sable,  and  what  naturally  tends  to  their  perfection  and  common  CHAP,  xir. 
happiness.      The  voluntary   law  tolerates  what   cannot   be 
avoided  without  introducing  greater  evils. 


CHAP.  XIII. 

OF   ACQUISITIONS    BY   WAR,   AND    PARTICULARLY    OF    CON-      CHAP,  xm. 
QUESTS. 

IF  it  be  lawful  to  carry  off  things  belonging  to  an  enemy,  §  193.  How 
with  a  view  of  weakening  him  (§  160),  and  sometimes  of  pu- war "  a 
nishing  him  (§  162),  it  is  no  less  lawful  in  a  just  war  to  appro-  ^^f^ 
priate  them  to  our  own  use,  by  way  of  compensation,  which 
the  civilians  term  expletio  juris  (§  161).     They  are  retained 
as  an  equivalent  for  what  is  due  by  the  enemy,  for  the  expenses 
and  damages  which  he  has  occasioned,  and  even  (when  there 
is  cause  to  punish  him)  as  a  commutation  for  the  punishment 
he  has  deserved.     For,  when  I  cannot  obtain  the  individual 
thing  which  belongs  or  is  due  to  me,  I  have  a  right  to  an 
equivalent,  which,  by  the  rules  of  expletive  justice,  and  in 
moral  estimation,  is  considered  as  the  thing  itself.     Thus, 
according  to  the  law  of  nature,  which  constitutes  the  neces- 
sary law  of  nations,  war,  founded  on  justice,  is  a  lawful  mode 
of  acquisition. 

But  that  sacred  law  does  not  authorize  even  the  acquisitions  §  194.  Mea- 
ns ade  in  a  just  war,  any  farther  than  as  they  are  approved  by  syre  of  tte 
justice, — that  is  to  say,  no  farther  than  is  requisite  to  obtain  n.^ht  u 
complete  satisfaction  in  the  degree  necessary  for  accomplish-  glv 
ing  the  lawful  ends  we  have  just  mentioned.     An  equitable 
conqueror,  deaf  to  the  suggestions  of  ambition  and  avarice, 
will  make  a  just  estimate  of  what  is  due  to  him, — that  is  to 
say,  of  the  thing  which  has  been  the  subject  of  the  war  (if  the 
thing  itself  is  no  longer  recoverable),  and  of  the  damages  and  [  385  ] 
expenses  of  the  war, — and  will  retain  no  more  of  the  enemy's 
property  than  what  is  precisely  sufficient  to  furnish  the  equiva- 
lent.    But  if  he  has  to  do  with  a  perfidious,  restless,  and 
dangerous  enemy,  he  will,  by  way  of  punishment,  deprive  him 
of  some  of  his  towns  or  provinces,  and  keep  them  to  serve  as 
a  barrier  to  his  own  dominions.     Nothing  is  more  allowable 
than  to  weaken  an  enemy  who  has  rendered  himself  suspected 
and  formidable.    The  lawful  end  of  punishment  is  future  secu- 
rity.    The  conditions  necessary  for  rendering  an  acquisition, 
made  by  arms,  just  and  irreproachable  before  God  and  our 
own  conscience,  are  these, — justice  in  the  cause,  and  equity 
in  the  measure  of  the  satisfaction. 

495 


385 


OP   ACQUISITIONS   BY  WAR,    ETC. 


BOOK  in.        But  nations  cannot,  in  their  dealings  with  each  other,  insist 
CHAP,  xin.  on  this  rigid  justice.     By  the  rules  of  the  voluntary  law  of 
§195.  Rules  nations,  every  regular  war  is  on  both  sides  accounted  just,  as 
of  the  vo-     to  its  effects  (§  190) ;  and  no  one  has  a  right  to  judge  a  nation 
luntary  law  respecting  the  unreasonableness  of  her  claims,  or  what  she 
o  nations.    Chinks  necessary  for  her  own  safety  (Prelim.  §  21).     Every 
acquisition,  therefore,  which  has  been  made  in  regular  war- 
fare, is  valid  according  to  the  voluntary  law  of  nations,  inde- 
pendently of  the  justice  of  the  cause  and  the  reasons  which 
may  have  induced  the  conqueror  to  assume  the  property  of 
what  he  has  taken.    Accordingly,  nations  have  ever  esteemed 
conquest  a  lawful  title ;   and  that  title  has  seldom  been  dis- 
puted, unless  where  it  was  derived  from  a  war  not  only  unjust 
in  itself,  but  even  destitute  of  any  plausible  pretext. 
§  196.  Ac-       The  property  of  movable  effects  is  vested  in  the  enemy 
quisition  of  from  the  moment  they  come  into  his  power  ;  and  if  he  sells 
property      t^iem  to  neutral  nations,  the  former  proprietor  is  not  entitled 
(168)          to  claim  them.     But  such  things  must  be  actually  and  truly 


(168)  See  further,  as  to  the  effect  of 
capture,  as  to  movables  and  immovables, 
and  the  doctrine  of  postliminium,  and 
the  principle  on  which  it  is  in  general 
founded,  post,  392,  §§  204,  205 ;  and 
the  other  authorities  and  modern  deci- 
sions, Marten's  L.  N.  290—293;  1 
Chitty's  Commercial  Law,  414 — 435; 
and  Id.  Index,  tit.  Postliminium. 

As  to  movables  captured  in  a  land 
war,  some  writers  on  the  law  of  nations 
state  it  to  be  merely  requisite  that  the 
property  shall  have  been  twenty-four 
hours  in  the  enemy's  power,  after  which 
they  contend,  that  the  right  of  postli- 
minium is  completely  divested,  so  that 
immediately  after  the  expiration  of  that 
time,  they  may  be  alienated  to  neutrals, 
as  indefeasible  property.  Others  con- 
tend, that  the  property  must  have  been 
brought  infra  prcesidia,  that  is,  within 
the  camps,  towns,  ports,  or  fleets  of  the 
enemy :  and  others  have  drawn  lines 
of  an  arbitrary  nature.  Marten's  L.  N. 
290-1 ;  2  Wooddeson's  Vin.  L.  444, 
§34. 

With  respect  to  maritime  captures,  a 
more  absolute  and  certain  species  of 
possession  has  been  required.  In  the 
case  of  Flad  Oyen,  1  Rob.  Rep.  134; 
Atcheson's  Rep.  8,  n.  9 ;  and  8  Term 
Rep.  270,  in  notes,  Sir  Wm.  Scott  said, 
"  By  the  general  practice  of  the  law  of 
nations,  a  sentence  of  condemnation  is  at 
present  deemed  generally  necessary; 
and  a  neutral  purchaser  in  Europe, 
during  war,  does  look  to  the  legal  sen- 
tence of  condemnation  as  one  of  the 


title-deeds  of  the  ship,  if  he  buys  a  prize- 
vessel.  I  believe  there  is  no  instance 
in  which  a  man,  having  purchased  a 
prize- vessel  of  a  belligerent,  has  thought 
himself  secure  in  making  that  purchase, 
merely  because  that  ship  had  been  in 
the  enemy's  possession  twenty-four 
hours,  or  carried  infra  pr&sidia.  At 
any  rate,  the  rule  of  condemnation  is 
the  general  rule  applied  by  England." 
So  that,  by  the  general  law  of  nations, 
if  a  vessel  be  retaken  before  condemna- 
tion, by  any  ship  of  the  nation  of  which 
the  original  owner  is  a  subject,  although 
even  four  years  after  the  capture,  he 
has  a  right  to  have  the  same  restored 
to  him,  subject  to  his  paying  certain 
salvage  to  the  re-captor.  See  Goss  and 
Withers,  2  Burr.  683  ;  Constant  Mary, 
3  Rob.  Rep.  97 ;  The  Huldah,  Id.  235 ; 
jlssievedo  v.  Cambridge,  10  Mod.  79. 
And  such  sentence  of  condemnation 
must  also  have  been  pronounced  by  a 
court  of  competent  jurisdiction,  and  in 
the  country  either  of  the  enemy  him- 
self, or  of  some  ally,  and  not  in  a  neu- 
tral country.  Flad  Oyen,  1  Rob.  Rep. 
134;  Havelock  \.  Rockwood,  Atcheson's 
Rep.  8,  n.  9. 

But  if,  after  the  time  of  the  enemy's 
transferring  his  prize  to  a  neutral,  a 
peace  be  concluded  between  that  enemy 
and  the  state  from  whose  subject  the 
prize  was  taken,  then  the  transfer  to 
the  neutral  becomes  valid  and  perfect, 
even  though  there  was  no  legal  con 
demnation,  for,  as  observed  by  Vattel 
the  right  of  postliminium  no  longei 


OF   ACQUISITIONS   BY   WAR,    ETC.  385 

in  the  enemy's  power,  and  carried  to  a  place  of  safety.  Sup-  BOOK  m. 
pose  a  foreigner,  coming  into  our  country,  buys  a-portion  of  CHAP,  xm. 
the  booty  which  a  party  of  enemies  have  just  taken  from  us : 
our  men,  who  are  in  pursuit  of  this  party,  may  very  justly 
seize  on  the  booty  which  that  foreigner  was  over  precipitate 
in  buying.  On  this  head,  Grotius  quotes  from  De  Thou  the 
instance  of  the  town  of  Lierre  in  Brabant,  which  having  been 
captured  and  recaptured  on  the  same  day,  the  booty  taken 
from  the  inhabitants  was  restored  to  them,  because  it  had  not 
been  twenty-four  hours  in  the  enemy's  hands.*  This  space 
of  twenty-four  hours,  together  with  the  practice  observed  at 
sea,f  is  an  institution  of  the  law  of  nations  established  by 
agreement  or  custom,  and  is  even  a  civil  law  in  some  states. 
The  natural  reason  of  the  conduct  adopted  towards  the  in- 
habitants of  Lierre  is,  that  the  enemy  being  taken  as  it  were 
in  the  fact,  and  before  they  had  carried  off  the  booty,  it  was 
not  looked  upon  as  having  absolutely  become  their  property, 
or  been  lost  to  the  inhabitants.  Thus,  at  sea,  a  ship  taken  [  386  ] 
by  the  enemy  may  be  retaken  and  delivered  by  other  ships 
of  her  own  party,  as  long  as  she  has  not  been  carried  into 
some  port,  or  into  the  midst  of  a  fleet :  her  fate  is  not  decided, 
nor  is  the  owner's  property  irrecoverably  lost,  until  the  ship 
be  in  a  place  of  safety  with  regard  to  the  enemy  who  has 
taken  her,  and  entirely  in  his  power.  But  the  ordinances  of 
every  state  may  make  different  regulations  on  this  head 
between  the  citizens,!  with  a  view  either  to  prevent  disputes, 


exists  after  the  conclusion  of  peace,  salvage  to  the  re-captor.  1  Chitty's 
And  see  Sir  W.  Scott's  decision  on  that  Com.  L.  434 — 6 ;  and  see  Franklin, 
point,  in  Schooner  Sop/tie,  6  Rob.  Rep.  4  Rob.  Rep.  147;  1  Edward's  Rep.  68; 
142.  San  Francisco,  1  Edward's  Rep.  279 ; 
In  cases  arising  between  British  sub-  the  Two  Friends,  1  Rob.  Rep.  271 ; 
jects  with  one  another,  and  also  in  Cornu  v.  Blackburne,  Dougl.  648.  {Lu- 
cases arising  between  such  subjects  ler  v.  The  Resolution,  2  Ball.  Rep.  1.} 
and  those  of  her  allies,  peculiar  modifi-  In  the  absence  of  express  stipulations 
cations  of  the  general  law  of  nations  with  allies,  Sir  Wm.  Scott  observed,  "  I 
were  introduced  or  acknowledged  by  understand  that  the  actual  rule  of  the 
Great  Britain.  Thus,  it  was  established  English  maritime  law  is  this : — viz.,  that 
by  several  acts  of  parliament  (13  Geo.  the  maritime  law  of  England  having 
2,  c.  4;  17  Geo.  2,  c.  34;  19  Geo.  2,  adopted  a  most  liberal  rule  of  restitu- 
c.  34;  43  Geo.  3,  c.  160;  and  see  tion  with  respect  to  the  re-captured 
Hamilton  v.  Mendes,  2  Burr.  1198;  property  of  its  own  subjects,  gives  the 
1  Bla.  Rep.  27),  that  the  maritime  right  benefit  of  that  rule  to  its  allies,  till  it 
of  postliminium  shall  subsist  even  to  appears  that  they  act  towards  British 
the  end  of  the  war ;  and,  therefore,  the  property  on  a  less  liberal  principle.  In 
ships  or  goods  of  the  subjects  of  this  such  a  case  it  adopts  their  rule,  and 
country,  taken  at  sea  by  an  enemy,  treats  them  according  to  their  own 
and  afterwards  retaken,  even  at  any  measure  of  justice."  —  Santa  Cruz, 
indefinite  period  of  time,  and  whether  1  Rob.  Rep.  49. — C. 
before  or  after  sentence  of  condemna-  *  Grotius,  de  Jure  Belli  et  Pacis, 
tion,  are  in  general  to  be  restored  to  lib.  iii.  cap.  vi.  §  iii.  n.  vii. 
the  original  proprietors,  but  subject  to  f  See  Grotius,  ibid,  and  in  the  text, 
certain  specified  exceptions,  and,  in  j  Grotius,  ibid, 
general,  also  subject  to  the  payment  of 

63                                   2  R  2  497 


386  OP  ACQUISITIONS   BY   WAR,   ETC. 

BOOK  in.   or  to  encourage  armed  vessels  to  retake  merchant  ships  that 
CHAP,  xiii.  have  fallen,  into  the  enemy's  hands. 

The  justice  or  injustice  of  the  cause  does  not  here  become 
an  object  of  consideration.  There  would  be  no  stability  in 
the  affairs  of  mankind,  no  safety  in  trading  with  nations 
engaged  in  war,  if  we  were  allowed  to  draw  a  distinction 
between  a  just  and  an  unjust  war,  so  as  to  attribute  lawful 
effects  to  the  one  which  we  denied  to  the  other.  It  would 
be  opening  a  door  to  endless  discussions  and  quarrels.  This 
reason  is  of  such  weight,  that,  on  account  of  it,  the  effects  of 
a  public  war,  at  least  with  regard  to  movables,  have  been 
allowed  to  expeditions  which  deserved  no  other  name  than  that 
of  predatory  enterprises,  though  carried  on  by  regular  armies. 
When,  after  the  wars  of  the  English  in  France,  the  grandes 
compagnies  ranged  about  Europe,  sacking  and  pillaging  wher- 
ever they  came,  none  of  the  sufferers  was  ever  known  to  claim 
the  booty  which  those  plunderers  had  carried  off  and  sold. 
At  present,  it  would  be  in  vain  to  claim  a  ship  taken  by  the 
Barbary  corsairs,  and  sold  to  a  third  party,  or  retaken  from 
the  captors ;  though  it  is  very  improperly  that  the  piracies  of 
those  barbarians  can  be  considered  as  acts  of  regular  war. 
We  here  speak  of  the  external  right :  the  internal  right  and 
the  obligations  of  conscience  undoubtedly  require,  that  we 
should  restore  to  a  third  party  the  property  we  recover  from 
an  enemy  who  had  despoiled  him  of  it  in  an  unjust  war, — 
provided  he  can  recognise  that  property,  and  will  defray  the 
expenses  we  have  incurred  in  recovering  it.  Grotius  quotes 
many  instances  of  sovereigns  and  commanders  who  have 
generously  restored  such  booty,  even  without  requiring  any 
thing  for  their  trouble  or  expense.*  But  such  conduct  is 

Pursued  only  in  cases  where  the  booty  has  been  recently  taken, 
t  would  be  an  impracticable  task,  scrupulously  to  seek  out 

the  proprietors  of  what  has  been  captured  a  long  time  back ; 

and  moreover  they  have,  no  doubt,  relinquished  all  their  right 

to  things  which  they  had  no  longer  any  hope  of  recovering. 

Such  is  the  usual  mode  of  thinking  with  respect  to  captures 

in  war,  which  are  soon  given  up  as  irrecoverably  lost. 
§  197.  Ac-       Immovable  possessions,  lands,  towns,  provinces,  &c.,  become 
quisition  of  the  property  of  the  enemy  who  makes  himself  master  of  them : 
^or°con-CS'  kut  ^  ^s  onty  kj  the  treaty  of  peace,  or  the  entire  submission 
quest.  (169)  an(l  extinction  of  the  state  to  which  those  towns  and  provinces 

belonged,  that  the  acquisition  is  completed,  and  the  property 

becomes  stable  and  perfect. 

§  198.  How  Thus,  a  third  party  cannot  safely  purchase  a  conquered 
to  transfer  town  or  province,  till  the  sovereign  from  whom  it  was  taken 
i^em  va-  ^as  renounced  it  by  a  treaty  of  peace,  or  has  been  irretrievably 

subdued,  and  has  lost  his  sovereignty :  for,  while  the  war  con- 

*  Grotius,  lib.  iii.  cap.  xvi.  post,  chap.  xiv. ;  and  the  case  of  Breda 

(169)  See  further  as  to  postliminium,     Lust,  5  Bob.  Rep.  233— 251.— C. 
498 


OF   ACQUISITIONS    BY   WAR,    ETC.  387 

tinues, — while  the  sovereign  h$  s  still  hopes  of  recovering  his  BOOK  m. 
possessions  by  arms, — is  a  neutral  prince  to  come  and  deprive  CHAP,  xm. 
him  of  the  opportunity  by  purchasing  that  town  or  province 
from  the  conqueror  ?  The  original  proprietor  cannot  forfeit 
his  rights  by  the  act  of  a  third  person ;  and  if  the  purchaser 
be  determined  to  maintain  his  purchase,  he  will  find  himself 
involved  in  the  war.  Thus,  the  king  of  Prussia  became  a 
party  with  the  enemies  of  Sweden,  by  receiving  Stettin  from 
the  hands  of  the  king  of  Poland  and  the  czar,  under  the  title 
of  sequestration.*  But,  when  a  sovereign  has,  by  a  definitive 
treaty  of  peace,  ceded  a  country  to  the  conqueror,  he  has 
relinquished  all  the  right  he  had  to  it ;  and  it  were  absurd 
that  he  should  be  allowed  to  demand  the  restitution  of  that 
country  by  a  subsequent  conqueror,  who  wrests  it  from  the 
former,  or  by  any  other  prince,  who  has  purchased  it,  or  re- 
ceived it  in  exchange,  or  acquired  it  by  any  title  whatever. 

The  conqueror,  who  takes  a  town  or  province  from  his  §199.  Con- 
enemy,  cannot  justly  acquire  over  it  any  other  rights  than  diti°ns  on 
such  as  belonged  to  the  sovereign  against  whom  he  has  taken 
up  arms.  War  authorizes  him  to  possess  himself  of  what 
belongs  to  his  enemy :  if  he  deprives  him  of  the  sovereignty 
of  that  town  or  province,  he  acquires  it  such  as  it  is,  with  all 
its  limitations  and  modifications.  Accordingly,  care  is  usually 
taken  to  stipulate,  both  in  particular  capitulations  and  in 
treaties  of  peace,  that  the  towns  and  countries  ceded  shall 
retain  all  their  liberties,  privileges,  and  immunities.  And 
why  should  they  be  deprived  of  them  by  the  conqueror,  on 
account  of  his  quarrel  with  their  sovereign  ?  Nevertheless, 
if  the  inhabitants  have  been  personally  guilty  of  any  crime 
against  him,  he  may,  by  way  of  punishment,  deprive  them  of 
their  rights  and  privileges.  This  he  may  also  do  if  the 
inhabitants  have  taken  up  arms  against  him,  and  have  thus 
directly  become  his  enemies.  In  that  case,  he  owes  them  no 
more  than  what  is  due  from  a  humane  and  equitable  conqueror 
to  his  vanquished  foes.  Should  he  purely  and  simply  incor- 
porate them  with  his  former  states,  they  will  have  no  cause  of 
complaint. 

Hitherto  I  evidently  speak  of  a  city  or  a  country  which  is  not 
simply  an  integrant  part  of  a  nation,  or  which  does  not  fully 
belong  to  a  sovereign,  but  over  which  that  nation  or  that 
sovereign  has  certain  rights.  If  the  conquered  town  or  pro- 
vince fully  and  perfectly  constituted  a  part  of  the  domain  of 
a  nation  or  sovereign,  it  passes  on  the  same  footing  into  the 
power  of  the  conqueror.  Thenceforward  united  with  the  new 
state  to  which  it  belongs, — if  it  be  a  loser  by  the  change, 
that  is  a  misfortune  which  it  must  wholly  impute  to  the  chance 
of  war.  Thus,  if  a  town  which  made  part  of  a  republic  or  a  [  388  ] 
limited  monarchy,  and  enjoyed  a  right  of  sending  'deputies  to 

*  By  the  treaty  of  Schwedt,  October  6, 1713. 

499 


388  OF  ACQUISITIONS   BY  WAR,    ETC. 

BOOK  in.  the  supreme  council  or  the  general  assembly  of  the  states,  be 
CHAP,  xin.  justly  conquered  by  an  absolute  monarch,  she  must  never  more 
think  of  such  privileges :  they  are  what  the  constitution  of  the 
new  state  to  which  she  is  annexed  does  not  permit. 
§200.  Lands      In  the  conquests  of  ancient  times,  even  individuals  lost  their 
of  private     lands.     Nor  is  it  matter  of  surprise  that  in  the  first  ages  of 
persons.       Rome  such  a  custom  should  have  prevailed.    The  wars  of  that 
era  were  carried  on  between  popular  republics  and  commu- 
nities.    The  state  possessed  very  little,  and  the  quarrel  was 
in  reality  the  common  cause  of  all  the  citizens.     But  at  pre- 
sent war  is  less  dreadful  in  its  consequences  to  the  subject : 
matters  are  conducted  with  more  humanity :  one  sovereign 
makes  war  against  another  sovereign,  and  not  against  the 
unarmed  citizens.     The  conqueror  seizes  on  the  possessions 
of  the  state,  the  public  property,  while  private  individuals  are 
permitted  to  retain  theirs.     They  suffer  but  indirectly  by  the 
war ;  and  the  conquest  only  subjects  them  to  a  new  master. 
§  201.  Con-     But  if  the  entire  state  be  conquered,  if  the  nation  be  sub- 
quest  of  the  dued,  in  what  manner  can  the  victor  treat  it,  without  trans- 
(170)  StatC'  Sress^nS  ^e  bounds  of  justice  ?     What  are  his  rights  over  the 
conquered  country  ?     Some  have  dared  to  advance  this  mon- 
strous principle,  that  the  conqueror  is  absolute  master  of  his 
conquest, — that  he  may  dispose  of  it  as  his  property, — that 
he  may  treat  it  as  he  pleases,  according  to  the  common  expres- 
sion of  treating  a  state  as  a  conquered  country ;  and  hence 
they  derive  one  of  the  sources  of  despotic  government.     But, 
disregarding  such  writers,  who  reduce  men  to  the  state  of 
transferable  goods  or  beasts  of  burthen, — who  deliver  them 
up  as  the  property  or  patrimony  of  another  man, — let  us 
argue  on  principles  countenanced  by  reason  and  conformable 
to  humanity. 

The  whole  right  of  the  conqueror  is  derived  from  justifiable 
self-defence  (§§  3,  26,  28),  which  comprehends  the  support 
and  prosecution  of  his  rights.  When,  therefore,  he  has  totally 
subdued  a  hostile  nation,  he  undoubtedly  may,  in  the  first 
place,  do  himself  justice  respecting  the  object  which  had  given 
rise  to  the  war,  and  indemnify  himself  for  the  expenses  and 
damages  he  has  sustained  by  it :  he  may,  according  to  the 
exigency  of  the  case,  subject  the  nation  to  punishment,  by 
way  of  example  :  he  may  even,  if  prudence  so  require,  render 

(170)  When  a  country  has  been  Trials,  p.  322 ;  and  Cowper,  205 ;  and 
conquered  by  the  British,  or  any  other  Fabrigas  v.  Moslyn,  Cowp.  Rep.  165. 
arms,  and  having  become  a  dominion  But  statutes  previously  passed  do  not 
of  the  king  in  right  of  his  crown,  the  in  general  extend  to  a  conquered  coun- 
conquered  inhabitants,  once  received  try;  see  2  Merivale's  Rep.  156;  4  Mo- 
by the  conqueror,  become  his  subjects,  dern  Rep.  222 ;  1  Chitty's  Com.  L. 
and  are  universally  to  be  regarded  in  639,  640;  1  Bla.  Com.  102 — 3.  As 
that  light,  and  not  as  enemies  or  aliens,  to  the  application  of  the  laws  of  Eng- 
Elphinttone  v.  Bedreechwid,  Knapp's  land  to  her  foreign  possessions,  see 
Rep.  338 ;  Campbell  v.  Hall,  23  State  Gardiner  v.  Fell,  1  Jac.  &  Walk.  27 ; 

and  Id.  30,  n.  (a).— -C. 
500 


OP   ACQUISITIONS    BY   WAR,    ETC.  388 

"her  incapable  of  doing  mischief  with  the  same  ease  in  future.   BOOK  m. 
But,  for  the  attainment  of  these  different  objects,  he  is  to  CHAP,  xm. 
prefer  the  gentlest  methods, — still  bearing  in  mind  that  the 
doing  of  harm  to  an  enemy  is  no  further  authorized  by  the 
law  of  nature,  than  in  the  precise  degree  which  is  necessary 
for  justifiable  self-defence,  and  reasonable  security  for  the 
time  to  come.     Some  princes  have  contented  themselves  with 
imposing  a  tribute  on  the  conquered  nation, — others,  with 
depriving  her  of  some  of  her  rights,  taking  from  her  a  pro- 
vince, or  erecting  fortresses  to  keep  her  in  awe :  others,  again, 
confining  their  quarrel  to  the  sovereign  alone,  have  left  the  [  389  ] 
nation  in  the  full  enjoyment  of  all  their  rights, — only  setting 
over  her  a  new  sovereign  of  their  own  appointment. 

But  if  the  conqueror  thinks  proper  to  retain  the  sovereignty 
of  the  conquered  state,  and  has  a  right  to  retain  it,  the  same 
principles  must  also  determine  the  manner  in  which  he  is  to 
treat  that  state.  If  it  is  against  the  sovereign  alone  that  he 
has  just  cause  of  complaint,  reason  plainly  evinces  that  he 
acquires  no  other  rights  by  his  conquest  than  such  as  belonged 
to  the  sovereign  whom  he  has  dispossessed :  and,  on  the  sub- 
mission of  the  people,  he  is  bound  to  govern  them  according 
to  the  laws  of  the  state.  If  the  people  do  not  voluntarily 
submit,  the  state  of  war  still  subsists. 

A  conqueror  who  has  taken  up  arms,  not  only  against  the 
sovereign,  but  against  the  nation  herself,  and  whose  intention 
it  was  to  subdue  a  fierce  and  savage  people,  and  once  for  all 
to  reduce  an  obstinate  enemy, — such  a  conqueror  may  with 
justice  lay  burthens  on  the  conquered  nation,  both  as  a  com- 
pensation for  the  expenses  of  the  war,  and  as  a  punishment. 
He  may,  according  to  the  degree  of  indocility  apparent  in  their 
disposition,  govern  them  with  a  tighter  rein,  so  as  to  curb  and 
subdue  their  impetuous  spirit :  he  may  even,  if  necessary, 
keep  them  for  some  time  in  a  kind  of  slavery.  But  this 
forced  condition  ought  to  cease  from  the  moment  the  danger 
is  over, — the  moment  the  conquered  people  are  become  citi- 
zens :  for  then  the  right  of  conquest  is  at  an  end,  so  far  as 
relates  to  the  pursuit  of  those  rigorous  measures,  since  the 
conqueror  no  longer  finds  it  necessary  to  use  extraordinary 
precautions  for  his  own  defence  and  safety.  Then  at  length 
every  thing  is  to  be  rendered  conformable  to  the  rules  of  a 
wise  government  and  the  duties  of  a  good  prince. 

When  a  sovereign,  arrogating  to  himself  the  absolute  dis- 
posal of  a  people  whom  he  has  conquered,  attempts  to  reduce 
them  to  slavery,  he  perpetuates  the  state  of  warfare  between 
that  nation  and  himself.  The  Scythians  said  to  Alexander 
the  Great,  "  There  is  never  any  friendship  between  the  master 
and  slave :  in  the  midst  of  peace  the  rights  of  war  still  subsist."* 

*  Inter  dominum  et  servum  nulla  amicitia  est ;  etiam  in  pace,  belli  tamen 
jura  servantur. — Q.  Curt.  lib.  vii.  cap.  viii. 

501 


389  OF   ACQUISITIONS   BY  WAR,   ETC. 

BOOK  in.  Should  it  be  said,  that  in  such  a  case  there  may  be  peace,  and 
CHAP,  sin.  a  kincl  of  compact  by  which  the  conqueror  consents  to  spare 
the  lives  of  the  vanquished,  on  condition  that  they  acknow- 
ledge themselves  his  slaves, — he  who  makes  such  an  assertion 
is  ignorant  that  war  gives  no  right  to  take  away  the  life  of 
an  enemy  who  has  laid  down  his  arms  and  submitted  (§  140). 
But  let  us  not  dispute  the  point :  let  the  man  who  holds  such 
principles  of  jurisprudence,  keep  them  for  his  own  use  and 
benefit :  he  well  deserves  to  be  subject  to  such  a  law.  But 
men  of  spirit,  to  whom  life  is  nothing,  less  than  nothing,  unless 
sweetened  with  liberty,  will  always  conceive  themselves  at  war 

[  390  ]  with  that  oppressor,  though  actual  hostilities  are  suspended 
on  their  part  through  want  of  ability.  We  may,  therefore, 
safely  venture  to  add,  that  if  the  conquered  country  is  to  be 
really  subject  to  the  conqueror  as  to  its  lawful  sovereign,  he 
must  rule  it  according  to  the  ends  for  which  civil  government 
has  been  established.  It  is  generally  the  prince  alone  who 
occasions  the  war,  and  consequently  the  conquest.  Surely  it 
is  enough  that  an  innocent  people  suffer  the  calamities  of  war : 
must  even  peace  itself  become  fatal  to  them  ?  A  generous 
conqueror  will  study  to  relieve  his  new  subjects,  and  mitigate 
their  condition :  he  will  think  it  his  indispensable  duty.  "  Con- 
quest (says  an  excellent  man)  ever  leaves  behind  it  an  im- 
mense debt,  the  discharge  of  which  is  absolutely  necessary  to 
acquit  the  conqueror  in  the  eye  of  humanity."* 

It  fortunately  happens,  that,  in  this  particular  as  in  every 
thing  else,  sound  policy  and  humanity  are  in  perfect  accord. 
What  fidelity,  what  assistance,  can  you  expect  from  an  op- 
pressed people  ?  Do  you  wish  that  your  conquest  may  prove 
a  real  addition  to  your  strength,  and  be  well  affected  to  you  ? — 
treat  it  as  a  father,  as  a  true  sovereign.  I  am  charmed  with 
the  generous  answer  recorded  of  an  ambassador  from  Priver- 
num.  Being  introduced  to  the  Roman  senate,  he  was  asked 
by  the  consul — "  If  we  show  you  clemency,  what  dependence 
can  we  have  on  the  peace  you  are  come  to  sue  for?"  "If 
(replied  the  ambassador)  you  grant  it  on  reasonable  condi- 
tions, it  will  be  safe  and  permanent :  otherwise,  it  will  not  last 
long."  Some  took  offence  at  the  boldness  of  this  speech  ;  but 
the  more  sensible  part  of  the  senate  approved  of  the  Priver- 
nian's  answer,  deeming  it  the  proper  language  of  a  man  and 
a  freeman.  "  Can  it  be  imagined  (said  those  wise  senators) 
that  any  nation,  or  even  any  individual,  will  longer  continue 
in  an  irksome  and  disagreeable  condition,  than  while  com- 
pelled to  submit  to  it  ?  If  those  to  whom  you  give  peace 
receive  it  voluntarily,  it  may  be  relied  on :  what  fidelity  can  you 
expect  from  those  whom  you  wish  to  reduce  to  slavery  ?"f 

*  Montesquieu,    in    his    Spirit    of     remittimus  vobis,  qualem  nos  pacem 

Laws.  vobiscum  habituros  speremus  ?     Si  bo- 

f  Quid,  si  poenam   (inquit  consul)     nam  dederitis,  inquit,  et  fidam  et  per- 


OF  ACQUISITIONS   BY  WAR,   ETC.  390 

"The  most  secure  dominion,"  said  Camillus,  "is  that  which   BOOKHI. 
is  acceptable  to  those  over  whom  it  is  exercised."*  CHAP,  xm. 

Such  are  the  rights  which  the  law  of  nature  gives  to  the 
conqueror,  and  the  duties  which  it  imposes  on  him.  The 
manner  of  exerting  the  one,  and  fulfilling  the  other,  varies 
according  to  circumstances.  In  general,  he  ought  to  consult 
the  true  interests  of  his  own  state,  and  by  sound  policy  to  [  391  ] 
reconcile  them,  as  far  as  possible,  with  those  of  the  conquered 
country.  He  may,  in  imitation  of  the  kings  of  France,  unite 
and  incorporate  it  with  his  own  dominions.  Such  was  the 
practice  of  the  Romans :  but  they  did  this  in  different  modes 
according  to  cases  and  conjunctures.  At  a  time  when  Rome 
stood  in  need  of  an  increase  of  population,  she  destroyed  the 
town  of  Alba,  which  she  feared  to  have  as  a  rival :  but  she 
received  all  its  inhabitants  within  her  walls,  and  thereby 
gained  so  many  new  citizens.  In  after  times  the  conquered 
cities  were  left  standing,  and  the  freedom  of  Rome  was  given 
to  the  vanquished  inhabitants.  Victory  could  not  have  proved 
so  advantageous  to  those  people  as  their  defeat. 

The  conqueror  may  likewise  simply  put  himself  in  the  place 
of  the  sovereign  whom  he  has  dispossessed.  Thus  the  Tartars 
have  acted  in  China :  the  empire  was  suffered  to  subsist  in  its 
former  condition,  except  that  it  fell  under  the  dominion  of  a 
new  race  of  sovereigns. 

Lastly,  the  conqueror  may  rule  his  conquest  as  a  separate 
state,  and  permit  it  to  retain  its  own  form  of  government. 
But  this  method  is  dangerous :  it  produces  no  real  union  of 
strength ;  it  weakens  the  conquered  country,  without  making 
any  considerable  addition  to  the  power  of  the  victorious  state. 

It  is  asked,  to  whom  the  conquest  belongs, — to  the  prince  §  202.  To 
who  has  made  it,  or  to  the  state  ?  This  question  ought  never  whom  the 
to  have  been  heard  of.  Can  the  prince,  in  his  character  of 
sovereign,  act  for  any  other  end  than  the  good  of  the  state  ? 
Whose  are  the  forces  which  he  employs  in  his  wars  ?  Even 
if  he  made  the  conquest  at  his  own  expense,  out  of  his  own 
revenue  or  his  private  and  patrimonial  estates,  does  he 
not  make  use  of  the  personal  exertions  of  his  subjects  in 
achieving  it  ?  Does  he  not  shed  their  blood  in  the  contest  ? 
But,  supposing  even  that  he  were  to  employ  foreign  or  mer- 
cenary troops,  does  he  not  expose  his  nation  to  the  enemy's 


petuam;   si  malam,  haud   diuturnam.  esse  fidam,  ubi  voluntarii  pacati  sint; 

Turn  vero  minari,  nee  id  ambigue  Pri-  neque  eo  loco,  ubi  servitutem  esse  velint, 

vernatem,   quidam,    et   illis   vocibus   ad  fidem  sperandam  esse. — Tit.  Liv.  lib. 

rebellandum    incitari    pacatos    populos,  viii.  cap.  xxi. 

Pars   melior    senatus    ad   meliora   re-  *  Certe  id  firmissimum  longe  impe- 

sponsa  trahere,  et  dicere  viri  et  liberi  rium  est,  quo  obedientes  gaudent. — Tit. 

•vocem  auditam :   an  credi  posse  ullum  Liv.  lib.  viii.  cap.  xiii. 

populum,  aut  hominem  denique,  in  ea  (171)  Ante,  365,   s.  164,  and  note 

conditione  cujus  eum  pceniteat,  diutius  (165). 

quam  necesse  sit,  mansurum  ?  ibi  pacem 


391  OF   ACQUISITIONS    BY   WAK,    ETC. 

BOOK  m.  resentment  ?     Does  he  not  involve  her  in  the  war  ?     And 

CHAP,  xnr.  shall  he  alone  reap  all  the  advantages  of  it  ?  Is  it  not  for  the 

cause  of  the  state,  and  of  the  nation,  that  he  takes  up  arms  ? 

The  nation,  therefore,  has  a  just  claim  to  all  the  rights  to 

which  such  war  gives  birth. 

If  the  sovereign  embarks  in  a  war,  of  which  his  own  per- 
sonal interests  are  the  sole  ground, — as,  for  instance,  to  assert 
his  right  of  succession  to  a  foreign  sovereignty, — the  question 
then  assumes  a  new  face.     In  this  affair  the  state  is  wholly 
unconcerned :  but  then  the  nation  should  be  at  liberty  either 
to  refuse  engaging  in  it,  or  to  assist  her  prince,  at  her  own 
option.     If  he  is  empowered  to  employ  the  national  force  in 
support  of  his  personal  rights,  he  should,  in  such  case,  make 
no  distinction  between  these  rights  and  those  of  the  state. 
The  French  law,  which  annexes  to  the  crown  all  acquisitions 
made  by  the  king,  should  be  the  law  of  all  nations.(lTl) 
§203.  Whe-      It  has  been  observed  (§  196)  that  we  maybe  obliged,  if  not 
ther  we  are  externally,  yet  in  conscience,  and  by  the  laws  of  equity,  to 
bert*  f  U"  restore  to  a  tnir(*  PartJ  tne  booty  we  have  recovered  out  of 
people**        *ne  hands  of  an  enemy  who  had  taken  it  from  him  in  an  unjust 
whom  the    war.     The  obligation  is  more  certain  and  more  extensive,  with 
enemy  had  regard  to  a  people  whom  our  enemy  had  unjustly  oppressed, 
unjustly       por  a  pe0pie  thus  spoiled  of  their  liberty,  never  renounce  the 
hope  of  recovering  it.     If  they  have  not  voluntarily  incorpo- 
[  392  ]  rated  themselves  with  the  state  by  which  they  have  been  sub- 
dued,— if  they  have  not  freely  aided  her  in  the  war  against 
us, — we  certainly  ought  so  to  use  our  victory,  as  not  merely 
to  give  them  a  new  master,  but  to  break  their  chains.     To 
deliver  an  oppressed  people  is  a  noble  fruit  of  victory :  it  is  a 
valuable  advantage  gained,  thus  to  acquire  a  faithful  friend. 
The  canton  of  Schweitz,  having  wrested  the  country  of  Glaris 
from  the  house  of  Austria,  restored  the  inhabitants  to  their 
former  liberties ;  and  Glaris,  admitted  into  the  Helvetic  con- 
federacy, formed  the  sixth  canton. *(172) 

(171)  dnte,  365,    s.  164,  and  note     tion;  and  this  is  the  principle  of  just 
(165).  war.     So,  there    is  no  regular   inter- 

*  Histoire  de  la  Confederation  Hel-  national    or  even  municipal   court   to 

ve'tique,  par  M.  de  Watteville,  liv.  iii.  adjudicate   upon   questions    of  lawful 

under  the  year  1351.  capture  or  prize.    And  in  Great  Britain, 

(172)  As  nations  are  independent  of  no  municipal  court,  whether  of  common 
each  other,  and  acknowledge  no  supe-  law  or  equity,  can  take  cognizance  of 
rior  (ante,  in  several  places),  there  is,  any  questions  arising  out  of  hostile  seiz- 
unfortunately,     no     sovereign     power  we;  nor  can  any  question  respecting 
among  nations  to  uphold  or  enforce  the  infraction  of  treaties  be  directly  agi- 
the  international  kw;  no  tribunal  to  tated   before   courts  of  law,  any  more 
which  the  oppressed  can  appeal,  as  of  than   questions   respecting    booty    ac- 
right,  against  the  oppressor ;  and,  con-  quired   in   a    continental    inland  war. 
sequently,  if  either   nation   refuse   to  In  general,  in  all  states,  this  is  a  juris- 
give  effect  to  the  established  principles  diction  assumed  only  by  the  sovereign, 
of  international  law,  the  only  redress  in  whom  the  right  or  power  of  declaring 
is  by  resorting  to  arms,  and  enforcing  war   and   peace,  and  modifying  their 
the  performance  of  the  national  obliga-  terms,  is  vested,  excepting  in  some  cases 

604 


OF  THE   RIGHT   OF   POSTLIMINIUM. 


392 


BOOK   III. 
CHAP.  XIV. 

CHAP.  XIV. 

OF   THE  RIGHT   OF   POSTLIMINIUM.  (173) 

THE  right  of  postliminium  is  that  in  virtue  of  which  per-  §  204.  De- 
sons  and  things  taken  by  the  enemy  are  restored  to  their  finition  of 

.  the  right  of 

of  particular  facts,  where  the  king  has 
thought  fit  to  act  with  the  concurrence 
of  his  nation  at  large,  instead  of  pro- 
ceeding only  upon  his  prerogative.  In 
Great  Britain,  the  king  usually,  by  a 
special  commission,  delegates  his  power 
to  decide  upon  questions  of  capture  and 
prize  to  the  chief  judge  of  the  Admi- 
ralty Court,  but  quite  separate  from  his 
ordinary  jurisdiction,  with  an  appeal  to 
the  Privy  Council ;  and  before  that  tri- 
bunal alone  can  any  question  of  capture 
or  prize  be  discussed ;  (Elphinstone  v. 
Bedreechund,  Knapp's  Rep.  Privy  Coun- 
cil, 316  to  361;  Le  Caux  v.  Eden, 
Dougl.  594 ;  Hill  v.  Reardon,  2  Rus- 
sell's Rep.  608  ;)  and  not  in  an  action  at 
law  or  court  of  equity,  excepting  in  the 
case  of  a  trust.  Id.  ibid. ;  and  Faith 
v.  Pearson,  Holt's  Cas.  Ni.  Pri.  113. 
Therefore,  where  the  members  of  the 
provisional  government  of  a  recent- 
ly conquered  country  seized  the  property 
of  a  native  of  it,  who  had  been  refused 
the  benefit  of  the  articles  of  capitula- 
tion of  a  fortress  of  which  he  had  been 
the  governor,  but  had  been  permitted 
to  reside,  under  military  surveillance, 
in  his  own  house  in  the  city  in  which 
the  seizure  was  made,  and  which  was 
at  a  considerable  distance  from  the 
scene  of  actual  hostilities ;  it  was  held 
by  the  House  of  Lords,  hi  England, 
that  the  seizure  having  been  made 
fiagrante  et  nondum  cessante  hello, 
must  be  regarded  in  the  light  of  a 
hostile  seizure,  and  that  a  municipal 
court  had  no  jurisdiction  on  the  sub- 
ject ;  (Elphinstone  v.  Bedreechund, 
Knapp's  Rep.  316  to  361 ;  and  see 
Hill  v.  Reardon,  2  Sim.  &  Stu.  431 ; 
but  which  on  one  point,  respecting  a 
trust,  was  afterwards  overruled  in 
Chancery  ;  Id.  2  Russ.  608  ;)  and 
per  Lord  Tenterden—"  We  think 
the  proper  character  of  the  transaction 
was  that  of  a  hostile  seizure,  made,  if 


not  flagrante,  yet  nondum  cessante  ^Oi 
hello,  regard  being  had  both  to  the UI1 
time,  the  place,  and  the  person  ;  and, 
consequently,  that  the  municipal  court 
had  no  jurisdiction  to  adjudge  upon 
the  subject :  but  that,  if  any  thing 
was  done  amiss, — recourse  could 
only  be  had  to  the  government  for 
redress.  We  shall  therefore  re- 
commend it  to  his  majesty  to 
reverse  the  judgment  of  the  Su- 
preme Court  of  Bombay." — Id.  page 
360-1. — 'Again,  it  has  been  held 
that  the  circumstances  that  a  recently 
conquered  city,  where  a  seizure  of  the 
property  of  a  native  is  made  by  the 
members  of  a  provisional  government 
during  time  of  war,  had  been  some 
months  previously  in  the  undisturbed 
possession  of  that  government,  and 
that  courts  for  the  administration  of 
justice  were  then  sitting  in  it,  under 
the  authority  of  that  government,  do 
not  alter  the  character  of  the  transac- 
tion, so  as  to  make  it  a  subject  of 
cognizance  by  a  municipal  court." — 
Id.  316. — And  there  is  no  distinction, 
in  this  respect,  between  the  public 
and  private  property  of  an  absolute 
monarch ;  and,  therefore,  money  in 
the  hands  of  the  banker  of  an  absolute 
monarch,  whose  territory  has  been 
conquered  by  the  British,  may  be 
recovered  from  the  banker,  on  an 
information,  on  behalf  of  the  crown. 
Mvocate-General  of  Bombay  v.  Jlmtr- 
chund,  Knapp's  Rep.  329,  note ;  El- 
phinstone v.  Bedreechund,  Knapp's  Rep. 
357. 

As  the  capture,  in  general,  belongs 
to  the  sovereign  of  the  state  (although, 
by  municipal  regulations,  the  actual 
captors  may  acquire  some  subordinate 
rights),  it  also  follows  that  no  British 
subject  can  maintain  an  action  against 
the  captor.  Caux  v.  Eden,  2  Dougl. 
573.  In  a  state  resulting  from  a  state 


(173)    See,   in   general,    1  Chitty's   Commercial    Law,  430  to  435;   Id. 
Index,  tit.  Postliminium.— C. 

64  28  506 


392 


OF   THE    RIGHT   OF   POSTLIMINITTM. 


BOOK  in.   former  state,  on  coming  again  into  the  power  of  the  nation 
CHAP,  xiv.  to  which  they  belonged.  (174) 

§205.  Foun-      ^e   sovereign    is    bound    to   protect    the   persons    and 

dationof      property  of  his  subjects,  and  to  defend  them  against  the 

this  right,     enemy.     When,   therefore,  a  subject,    or   any  part  of  his 

property,  has  fallen  into  thevenemy's  possession,  should  any 

fortunate  event  bring  them  again  into  the  sovereign's  power, 

it  is  undoubtedly  his  duty  to  restore  them  to  their  former 

condition, — to   re-establish   the   persons  in  all  their  rights 

and  obligations,  to  give  back  the  effects  to  the  owners, — 


of  war,  if  property  be  seized  under  an 
erroneous  supposition  that  it  belongs 
to  the  enemy,  it  may  be  liberated  by 
the  proper  authorities ;  but  no  action 
can  be  maintained  against  the  party 
who  has  taken  it,  in  a  court  of  law. 
Caux  v.  Eden,  2  Dougl.  573 ;  Elphin- 
stone  v.  Bedreechund,  Knapp's  Rep. 
357.  If  an  English  naval  commander 
seize  any  movable  as  enemies'  pro- 
perty, that  turns  out  clearly  to  be 
British  property,  he  forfeits  his  prize 
to  the  Prize  Court  (sometimes  con- 
founded with  the  Court  of  Admiralty), 
and  that  court  awards  the  return  of  it 
to  the  party  from  whom  it  was  taken. 
The  Court  of  Admiralty  is  the  proper 
tribunal  for  the  trial  of  questions  of 
prize  or  no  prize,  and  it  exercises  this 
jurisdiction  as  a  court  of  prize,  under 
a  commission  from  his  majesty ;  and 
if  it  makes  an  unsatisfactory  deter- 
mination, an  appeal  lies  to  his  ma- 
jesty in  council ;  for,  the  king  reserves 
the  ultimate  right  to  decide  on  such 
questions  by  his  own  authority,  and 
does  not  commit  their  determination 
to  any  municipal  court  of  justice. 

Booty  taken  under  the  colour  of 
military  authority,  falls  under  the 
same  rule.  If  property  be  taken  by  an 
officer  under  the  supposition  that  it  is 
the  property  of  a  hostile  state,  or  of 
individuals,  which  ought  to  be  con- 
fiscated, no  municipal  court  can  judge 
of  the  propriety  or  impropriety  of  the 
seizure :  it  can  be  judged  of  only  by 
an  authority  delegated  by  his  majesty, 
and  by  his  majesty,  ultimately,  as- 
sisted by  the  lords  in  council.  There 
are  no  direct  decisions  on  such  ques- 
tions, because,  as  was  stated  by 
Lord  Mansfield,  in  Lindo  v.  Rodney, 
they  are  cases  of  rare  occurrence. 
Elphinstone  v.  Bedreechund,  Knapp's 
Rep.  340,  357-8;  Caux  v.  Eden, 
Dougl.  592  ;  Lindo  v.  Rodney,  Id.  313. 
506 


For  these  reasons,  it  is  usual,  when 
questions  of  importance  between  two 
sovereigns,  or  their  subjects,  arise,  by 
particular  treaty,  to  constitute  a  tri- 
bunal for  that  special  purpose;  and 
municipal  statutes  have  been  passed 
in  England  in  aid  of  such  treaty. 
Thus,  by  additional  articles  of  the 
definitive  treaty  of  peace  between 
Great  Britain  and  France,  of  the  30th 
May  1814,  certain  conventions  were 
made  for  indemnifying  British  sub- 
jects for  the  confiscation  of  their  pro- 
perty by  the  French  revolutionary 
government,  and  certain  commission- 
ers were  appointed  between  the  two 
countries,  to  examine  and  decide  upon 
such  British  claims ;  and  the  statute 
59  Geo.  3,  c.  51,  was  passed  with 
the  same  object  ;  and  such  claims 
were  adjudicated  upon  between  the 
two  countries.  It  was  held,  however, 
that  these  conventions  and  treaties, 
and  the  act  for  carrying  the  same  into 
effect,  did  not  exclude  the  jurisdiction 
of  a  court  of  equity  to  examine  and 
enforce  equities  attaching  upon  the 
compensation  in  the  hands  of  the 
person  in  whose  favour  the  award 
of  the  commissioners  had  been 
made;  (Hill  v.  Reardon,  2  Russell's 
Rep.  609,  overruling  S.  C.  in  2  Sim. 
&  Stu.  437;)  and  it  was  holden 
that,  where  a  person,  in  whose  favour 
an  adjudication  under  such  conven- 
tions has  been  made  by  the  com- 
missioners or  by  the  Privy  Council, 
is  affected  by  a  trust  or  by  fraud,  a 
court  of  equity  has  jurisdiction  to 
enforce  the  trust  or  relieve  against  the 
fraud  (id.  ibid.) ;  and  the  same  prin- 
ciple would,  no  doubt,  be  extended 
to  cases  of  capture  or  prize. — C. 

(174)  See  ante,  s.  196,  page  385, 
note  (168),  as  to  movables  and 
ships. — C. 


OF  THE  EIGHT   OF   POSTLIMINIUM.  392 

in  a  word,  to  replace  every  thing  on  the  same  footing  on  BOOK  m. 
which  it  stood  previous  to  the  enemy's  capture.  CHAP.  XIT. 

The  justice  or  injustice  of  the  war  makes  no  difference  in 
this  case, — not  only  because,  according  to  the  voluntary  law 
of  nations,  the  war,  as  to  its  effects,  is  reputed  just  on  both 
sides,  but  likewise  because  war,  whether  just  or  not,  is  a 
national  concern ;  and,  if  the  subjects  who  fight  or  suffer  in 
the  national  cause,  should,  after  they  have,  either  in  their 
persons  or  their  property,  fallen  into  the  enemy's  power, 
be,  by  some  fortunate  incident,  restored  to  the  hands  of 
their  own  people,  there  is  no  reason  why  they  should  not 
be  restored  to  their  former  condition.  It  is  the  same  as  if 
they  had  never  been  taken.  If  the  war  be  just  on  the  part 
of  their  nation,  they  were  unjustly  captured  by  the  enemy ; 
and  thus  nothing  is  more  natural  than  to  restore  them  as 
soon  as  it  becomes  possible.  If  the  war  be  unjust,  they  are 
under  no  greater  obligation  to  suffer  in  atonement  for  its 
injustice  than  the  rest  of  the  nation.  Fortune  brings  down 
the  evil  on  their  heads  when  they  are  taken :  she  delivers 
them  from  it  when  they  escape.  Here,  again,  it  is  the  same 
as  if  they  never  had  been  captured.  Neither  their  own 
sovereign,  nor  the  enemy,  has  any  particular  right  over  [  393  "] 
them.  The  enemy  has  lost  by  one  accident  what  he  had 
gained  by  another. 

Persons  return,  and  things  are  recovered,  by  the  right  of  §206.  How 
postliminium,  when,  after  having  been  taken  by  the  enemy, it;  takes  ef- 
they  come  again  into  the  power  of  their  own  nation  (§  204).      ' 
This  right,  therefore,  takes  effect  as  soon  as   such  persons 
or  things  captured  by  the  enemy  fall  into  the  hands  of  sol- 
diers belonging  to  their  own  nation,  or  are  brought  back  to 
the  army,  the  camp,  the  territories  of  their  sovereign,  or  the 
places  under  his  command. 

Those  who  unite  with  us  to  carry  on  a  war  are  joint  par-  §  207.  Whe- 
ties   with  us :    we  are   engaged  in  a  common  cause ;    our  ther  it  takes 
right   is  one  and   the   same ;    and  they  are  considered   as  effect  among 
making  but  one  body  with  us.     Therefore,  when  persons  or  ^^  ies 
things  captured  by  the  enemy  are  retaken  by  our  allies  or 
auxiliaries,   or  in  any  other  manner  fall  into  their  hands, 
this,  so  far  as  relates  to  the  effect  of  the  right,  is  precisely 
the  same  thing   as  if  they  were  come  again  into  our  own 
power ;  since,  in  the  cause  in  which  we  are  jointly  embark- 
ed, our  power  and   that  of  our  allies  is   but   one  and  the 
same.      The   right   of  postliminium   therefore   takes   effect 
among  those  who  carry  on  the  war  in  conjunction  with  us ; 
and  the  persons  and   things  recovered  by  them   from  the 
enemy  are  to  be  restored  to  their  former  condition.  (175) 

(175)  As  to  the  general  rule  in  the  But,  in  general,  the  precise  rule  is 
absence  of  treaty,  see  Santa  Cruz,  fixed  by  treaty  between  allies.  Id. 
I  Rob.  Rep.  49 ;  ante,  385,  n.  (168).  ibid.— C. 

507 


393  OF   THE   RIGHT   OF    POSTLIMINIUM. 

BOOK  in.  But,  does  this  right  take  place  in  the  territories  of  our 
CHAP,  xiv.  allies  ?  Here  a  distinction  arises.  If  those  allies  make  a 
common  cause  with  us, — if  they  are  associates  in  the  war, — 
we  are  necessarily  entitled  to  the  right  of  postliminium 
in  their  territories  as  well  as  in  our  own  :  for,  their  state  is 
united  with  ours,  and,  together  with  it,  continues  but  one 
party  in  the  war  we  carry  on.  But  if,  as  in  our  times  is 
frequently  the  practice,  an  ally  only  gives  us  a  stated  suc- 
cour stipulated  by  treaty,  and  does  not  himself  come  to  a 
rupture  with  our  enemy,  between  whose  state  and  his  own, 
in  their  immediate  relations,  peace  continues  to  be  observed, 
— in  this  case,  only  the  auxiliaries  whom  he  sends  to  our 
assistance  are  partakers  and  associates  in  the  war ;  and  his 
dominions  remain  in  a  state  of  neutrality. 

§208.  Of  no      Now,  the  right  of  postliminium  does  not  take  effect  in 
validity  in    neutral  countries :    for,  when    a  nation   chooses  to  remain 
neuter  in  a  war,  she  is  bound  to  consider  it  as  equally  just 
on  both  sides,  so  far  as  relates  to  its  effects, — and,   conse- 
quently, to  look  upon  every  capture  made  by  either  party 
as  a  lawful  acquisition.     To   allow  one   of  the  parties,   in 
prejudice  to  the  other,  to  enjoy  in  her  dominions  the  right 
[  394  ]  of  claiming  things  taken  by  the  latter,  or  the  right  of  post- 
liminium, would  be  declaring  in  favour  of  the  former,  and 
departing  from  the  line  of  neutrality. 

§209.  What  Naturally,  every  kind  of  property  might  be  recovered  by 
things  are  fae  right  of  postliminium ;  and  there  is  no  intrinsic  reason 
by^thtr  e  wny  movables  should  be  excepted  in  this  case,  provided 
right  (176)  they  can  be  certainly  recognised  and  identified.  Accord- 
ingly, the  ancients,  on  recovering  such  things  from  the 
enemy,  frequently  restored  them  to  their  former  owners.* 
But  the  difficulty  of  recognising  things  of  this  nature,  and 
the  endless  disputes  which  would  arise  from  the  prosecu- 
tion of  the  owners'  claims  to  them,  have  been  deemed  mo- 
tives of  sufficient  weight  for  the  general  establishment  of  a 
contrary  practice.  To  these  considerations  we  may  add, 
that,  from  the  little  hope  entertained  of  recovering  effects 
taken  by  the  enemy  and  once  carried  to  a  place  of  safety,  a 
reasonable  presumption  arises  that  the  former  owners  have 
relinquished  their  property.  It  is  therefore  with  reason 
that  movables  or  booty  are  excepted  from  the  right  of 
postliminium,  unless  retaken  from  the  enemy  immediately 
after  his  capture  of  them ;  in  which  case,  the  proprietor 
neither  finds  a  difficulty  in  recognising  his  effects,  nor  is 
presumed  to  have  relinquished  them.  And,  as  the  custom 
has  once  been  admitted,  and  is  now  well  established,  there 
would  be  an  injustice  in  violating  it  (Prelim.  §  26).  Among 


(176)   As  to  movables    and   ships,         *  See  several  instances  in  Grotius, 
ante,  384,  n. — C.  book  iii.  ch.  xvi.  §  2. 


OF  THE   RIGHT   OF   POSTLIMINIUM.  394 

the   Romans,   indeed,  slaves   were   not  treated   like   other  BOOK  m. 
movable  property :     they,   by   the   right   of  postliminium,  CHAP,  xiv. 
were  restored  to  their  masters,  even  when  the  rest  of  the 
booty  was  detained.     The  reason  of  this  is  evident :  for,  as 
it  was  at  all  times  easy  to  recognise  a  slave,  and  ascertain 
to  whom  he  belonged,  the  owner,  still  entertaining  hopes 
of  recovering  him,  was  not   supposed  to  have  relinquished 
his  right. 

Prisoners  of  war,  who  have  given  their  parole, — territories  §  210.  Of 
and  towns  which  have  submitted  to  the  enemy,  and  kave^e£J- 
sworn  or  promised  allegiance  to  him, — cannot  of  themselves  *^n^t  r°_ 
return  to  their  former   condition  by  the  right  of  postlimi-  turn  by  the 
nium  :  for,  faith  is  to  be  kept  even  with  enemies  (§174).         rightofpost- 

But  if  the  sovereign  retakes  those   towns,  countries,  orlimmmm- 
prisoners,  who  had  surrendered  to  the  enemy,  he  recovers  (  ' 
all  his  former  rights  over  them,  and  is  bound  to  re-establish  §  2.x  l •  7"hey 
them  in  their  pristine  condition  (§  205).     In  this  case,  they^^en 
enjoy  the  right  of  postliminium  without  any  breach  of  their  retaken, 
word,  any  violation   of  their   plighted   faith.     The   enemy 
loses  by  the  chance  of  war  a  right  which  the  chance  of  war 
had  before  given  him.     But,  concerning  prisoners  of  war,  a 
distinction  is  to  be  made.     If  they  were  entirely  free  on 
their  parole,  the  single  circumstance  of  their  coming  again 
into  the  power  of  their  own  nation  does  not  release  them, 
— since,  even  if  they  had  returned  home,  they  would  still 
have  continued  prisoners.     The  consent  of  the  enemy  who 
had  captured  them,  or  his  total  subjugation,  can  alone  dis- 
charge" them.     But,  if  they  have  only  promised  not  to  effect 
their  escape, — a  promise   which  prisoners  frequently  make  [  395  ] 
in  order  to  avoid  the  inconveniences  of  a  jail, — the  only 
obligation  incumbent  on  them   is,    that   they  shall  not,  of 
themselves,  quit  the  enemy's  country,  or  the  place  assigned 
for   their   residence.       And   if  the   troops   of  their   party 
should  gain  possession  of  the  place  where  they  reside,  the 
consequence  is,  that,  by  the  right  of  war,  they  recover  their 
liberty,  are  restored  to  their  own  nation,  and  reinstated  in 
their  former  condition.  (178) 

(177)  In  general,  as  regards  coun-  absolutely  new.     Upon  this  principle 

tries  or  persons  taken  by  a  belligerent  was   decided   an    important  question 

state,  who  were  not  the   subjects  of  in  the   case   of  Boedes   Lust,  5  Rob. 

that  state  during  any  preceding  part  Rep.  233 ;  and  on  the  same  principle 

of  the  same  war,  a  different  rule  pre-  it  was  established,  that,  if  a  neutral 

vails  than  that  laid   down  by  Vattel,  have   but  just   set    his   foot   on   the 

sect.  211 ;  for,  the  law  of  postliminium  colony  of  an  enemy  for  a  few  hours 

implies    that    the    party   claiming   it  before  its  capture ;  but  if  it  be  proved 

returns     to     his    previous    character,  that  he  went   there  for  the  purpose  of 

And  he  who,  during  the  whole  war,  settling,    then    his    property    will  be 

has  been  the   subject   of  the  enemy  subject  to    condemnation,    as   if   he 

alone,  must  be  considered,   when  he  were  a  native  enemy.     And  see  the 

falls  into  the  hands  of  the  rival  state,  Diana,  5  Rob.  Rep.  60.— C. 
not  as  returning  to    a  previous   cha-         (178)  See  note  (177),  ante. 
racter,   but  as  acquiring  a  character 

2s  2  509 


395  OF  THE   RIGHT   OF   POSTLIMINIUM. 

BOOK  in.        When  a  town,  reduced  by  the  enemy's  arms,  is  retaken  by 
CHAP,  xiv.  those  of  her  own  sovereign,  she  is,  as  we  have  above  seen, 
§2 12.  Whe-  restored  to  her  former  condition,  and  reinstated  in  the  pos- 
ther  this      session  of  all  her  rights.     It  is  asked  whether  she  thus  re- 
tflMjs  T"      covers  such  Part  °f  ner  property  as  had  been  alienated  by 
tne'ir  pro-     *ke  enemy  while  he  kept  her  in  subjection.     In  the  first  place, 
perty  alien-  we  are  to  make  a  distinction  between  movable  property  not 
ated  by        recoverable  by  the  right  of  postliminium  (§  202),    and  im- 
the  enemy,  movables.      The  former  belongs  to  the  enemy  who  gets  it 
into  his  hands,  and  he  may  irrecoverably  alienate  it.     As  to 
immovables,  let  it  be  remembered  that  the  acquisition  of  a 
town  taken  in  war  is  "not  fully  consummated  till  confirmed  by 
a  treaty  of  peace,  or  by  the  entire  submission  or  destruction 
of  the  state  to  which  it  belonged  (§  197).     Till  then,  the  sove- 
reign of  that  town  has  hopes  of  retaking  it,  or  of  recovering  it 
by  a  peace.     And  from  the  moment  it  returns  into  his  power, 
he  restores  it  to  all  its  rights  (§  205),  and  consequently  it 
recovers  all  its  possessions,  as  far  as  in  their  nature  they  are 
recoverable.     It  therefore  resumes  its  immovable  possessions 
from  the  hands  of  those  persons  who  have  been  so  prematurely 
forward  to  purchase  them.     In  buying  them  of  one  who  had 
not  an  absolute  right  to  dispose  of  them,  the  purchasers  made 
a  hazardous  bargain  ;  and  if  they  prove  losers  by  the  transac- 
tion, it  is  a  consequence  to  which  they  deliberately  exposed 
themselves.     But  if  that  town  had  been  ceded  to  the  enemy  by 
a  treaty  of  peace,  or  was  completely  fallen  into  his  power  by 
the  submission  of  the  whole  state,  she  has  no  longer  any 
claim  to  the  right  of  postliminium  ;  and  the  alienation  of  any 
of  her  possessions  by  the  conqueror  is  valid  and  irreversible  ; 
nor  can  she  lay  claim  to  them,  if,  in  the  sequel,  some  fortunate 
revolution  should  liberate  her  from  the  yoke  of  the  conqueror. 
When  Alexander  made  a  present  to  the  Thessalians  of  the 
sum  due  from  them  to  the  Thebans  (see  §  77),  he  was  so  abso- 
lutely master  of  the  republic  of  Thebes,  that  he  destroyed  the 
city  and  sold  the  inhabitants. 

The  same  decisions  hold  good  with  regard  to  the  immov- 
able property  of  individuals,  prisoners  or  not,  which  has  been 
alienated  by  the  enemy  while  he  was  master  of  the  country. 
Grotius  proposes  the  question  with  respect  to  immovable  pro- 
perty possessed  in  a  neutral  country  by  a  prisoner  of  war.* 
[  396  ]  But,  according  to  the  principles  we  have  laid  down,  this 
question  is  groundless  :  for,  the  sovereign  who  makes  a  pri- 
soner in  war,  has  no  other  right  over  him  than  that  of  detain- 
ing his  person  until  the  conclusion  of  the  war,  or  until  he  be 
ransomed  (§§  148,  &c.) ;  but  he  acquires  no  right  to  the  pri- 
soner's property,  unless  he  can  seize  on  it.  It  is  impossible  to 
produce  any  natural  reason  why  the  captor  should  have  a  right 


,  *  Lib.  iii.  cap.  ix.  §  vL 

510 


OF   THE   EIGHT   OF   POSTLIMINIUM.  396 

to  dispose  of  his  prisoner's  property,  unless  the  prisoner  has  BOOK  m. 
it  about  him.  CHAP.  XIY. 

When  a  nation,  a  people,  a  state,  has  been  entirely  sub-  §  2i3.Whe- 
dued,  it  is  asked  whether  a  revolution  can  entitle  them  to  the  ther  a  na- 
right  of  postliminium.      In  order  justly  to  answer  this  ques-  tion  that  has 
tion,  there  must   again  be  a  distinction  of  cases.     If  that  j^Jjj1  e^_ 
conquered  state  has  not  yet  acquiesced  in  her  new  subjection,  due  Jean  en- 
fa  as  not  voluntarily  submitted,  and  has  only  ceased  to  resist  joy  the  right 
from  inability, — if  her  victor  has  not  laid  aside  the  sword  of  of  postlimi- 
conquest  and  taken  up  the  sceptre  of  peace  and  equity, — mum* 
such  a  people  are  not  really  subdued  :  they  are  only  defeated 
and  oppressed ;  and,  on  being  delivered  by  the  arms  of  an 
ally,  they  doubtless  return  to  their  former  situation  (§  207). 
Their  ally  cannot  become  their  conqueror ;  he  is  their  deli- 
verer ;  and  all  the  obligation  of  the  party  delivered  is  to  re- 
ward him.     If  the  subsequent  conqueror,  not  being  an  ally 
to  the  state  of  which  we  speak,  intends  to  keep  it  under  his 
own  jurisdiction  as  the  reward  of  his  victory,  he  puts  him- 
self in  the  place  of  the  former  conqueror,  and  becomes  the 
enemy  of  the  state  which  the  other  had   oppressed:    that 
state  may  lawfully  resist  him,  and  avail  herself  of  a  favour- 
able opportunity  to  recover  her  liberty.      If  she  had  been 
unjustly  oppressed,  he  who  rescues  her  from  the  yoke  of  the 
oppressor  ought  generously  to  reinstate  her  in  the  possession 
of  all  her  rights  (§  203). 

The  question  changes  with  regard  to  a  state  which  haa 
voluntarily  submitted  to  the  conqueror.  If  the  people,  no 
longer  treated  as  enemies,  but  as  actual  subjects,  have  sub- 
mitted to  a  lawful  government,  they  are  thenceforward  de- 
pendent on  a  new  sovereign;  or,  being  incorporated  with 
the  victorious  nation,  they  become  a  part  of  it,  and  share  its 
fate.  Their  former  state  is  absolutely  destroyed;  all  its 
relations,  all  its  alliances  are  extinguished  (Book  II.  §  203). 
Whoever,  then,  the  new  conqueror  may  be,  that  afterwards 
subdues  the  state  to  which  these  people  are  united,  they 
share  the  destiny  of  that  state,  as  a  part  shares  the  fate  of 
the  whole.  This  has  been  the  practice  of  nations  in  all  ages, 
— I  say,  even  of  just  and  equitable  nations, — especially  with 
regard  to  an  ancient  conquest.  The  most  moderate  conqueror 
confines  his  generosity  in  this  particular  to  the  restoration 
of  the  liberties  of  a  people  who  have  been  but  recently  sub- 
dued, and  whom  he  does  not  consider  as  perfectly  incorporated, 
or  well  cemented  by  inclination,  with  the  state  which  he  has 
conquered. 

If  the  people  in  question  shake  off  the  yoke  and  recover 
their  liberty  by  their  own  exertions,  they  regain  all  their 
rights  ;  they  return  to  their  former  situation ;  and  foreign 
nations  have  no  right  to  determine  whether  they  have  shaken 
off  the  yoke  of  lawful  authority,  or  burst  the  chains  of  slavery. 
Thus,  the  kingdom  of  Portugal, — which  had  been  seized  on 

511 


397  OF   THE   RIGHT   OF   POSTLIMINIUM. 

BOOK  in.   by  Philip  II.  king  of  Spain,  under  pretence  of  an  hereditary 

CHAP,  xiv.  right,  but  in  reality  by  force  and  the  terror  of  his  arms,— 

re-established  the  independency  of  her  crown,  and  recovered 

her  former  rights,  when  she  drove  out  the  Spaniards,  and 

placed  the  duke  of  Braganza  on  the  throne. 

§214.  Right      Provinces,  towns,  and  lands,  which  the  enemy  restores  by 

niuTfS1""  the  treaty  of  Peace>  are  certainly  entitled  to  the  right  of  post- 

what  is  re-   i"*"Wtt«l :  for,  the  sovereign,  in  whatever  manner  he  reco- 

stored  at  the  vers  them,  is  bound  to  restore  them  to  their  former  condition, 

peace,         as   soon    as  he  regains  possession   of  them  (§  205).      The 

enemy,  in  giving  back  a  town  at  the  peace,  renounces  the 

right  he  had  acquired  by  arms.     It  is  just  the  same  as  if  he 

had  never  taken  it ;  and  the  transaction  furnishes  no  reason 

which  can  justify  the  sovereign  in  refusing  to  reinstate  such 

town  in  the  possession  of  all  her  rights,  and  restore  her  to 

her  former  condition. 

§  215.  and  But  whatever  is  ceded  to  the  enemy  by  a  treaty  of  peace, 
ceded't^th  18  truty  an(^  completely  alienated.  It  has  no  longer  any 
enemy.0  6  claim  to  the  right  of  postliminium,  unless  the  treaty  of  peace 

be  broken  and  cancelled. 

§  216.  The       And  as  things  not  mentioned  in  the  treaty  of  peace  re- 

r'm^niu1*081"  ma^n  *n  the  condition  in  which  they  happen  to  be  at  the 

does  not  er-  ^me  when  the  treaty  is  concluded,  and  are,  on  both  sides, 

ist  after  a     tacitly  ceded  to  the  present  possessor,  it  may  be  said,  in  ge- 

peace.         neral,  that  the  right  of  postliminium  no  longer  exists  after 

the  conclusion  of  the  peace.     That  right  entirely  relates  to 

the  states  of  war. 

§  217.  Why  Nevertheless,  and  for  this  very  reason,  there  is  an  excep- 
always  m  ^ion  to  be  made  here  in  favour  of  prisoners  of  war.  Their 
sonere  Pn~  sovereign  is  bound  to  release  them  at  the  peace  (§  154).  But, 
if  he  cannot  accomplish  this, — if  the  fate  of  war  compels  him 
to  accept  of  hard  and  unjust  conditions, — the  enemy,  who 
ought  to  set  the  prisoners  at  liberty  when  the  war  is  termi- 
nated, and  he  has  no  longer  any  thing  to  fear  from  them 
(§§  150,  153),  continues  the  state  of  war  with  respect  to 
them,  if  he  still  detains  them  in  captivity,  and  especially  if 
he  reduces  them  to  slavery  (§  152).  They  have  therefore  a 
right  to  effect  their  escape  from  him,  if  they  have  an  oppor- 
tunity, and  to  return  to  their  own  country,  equally  as  in  war 
time ;  since,  with  regard  to  them,  the  war  still  continues. 
And  in  that  case,  the  sovereign,  from  his  obligation  to  pro- 
tect them,  is  bound  to  restore  them  to  their  former  condi- 
tion (§  205). 

§218.  They      Further,  those  prisoners  who  are,  without  any  lawful  rea- 

are  free  even  gonj  detained  after  the  conclusion  of  peace,  become  imme- 

hLTne^  di^61?  free,  when,  once  escaped  from  captivity,  they  have 

trai  country.  even  reached  a  neutral  country  :  for,  enemies  are  not  to  be 

pursued  and  seized  on  neutral  ground  (§  132) ;  and  whoever 

detains  an  innocent  prisoner  after  the  peace,  continues  to 

be  his  enemy.     This  rule  should  and  actually  does  obtain 

512 


OF   THE   RIGHT   OF   POSTLIMINIUM.  397 

among  nations  who  do  not  admit  and  authorize  the  practice    BOOK  m. 
of  enslaving  prisoners  of  war. 


It  is  sufficiently  evident  from  the  premises,  that  prisoners  §  219.  HOW 
are  to  be  considered  as  citizens  who  may  one  day  return  to the  ri^te 
their  country :  and,  when  they  do  return,  it  is  the  duty  of  tions°oflgri 
the  sovereign  to  re-establish  them  in  their  former  condition,  soners  sub- 
Hence  it  clearly  follows,  that   the   rights  of  every  one  of  sist 
those  prisoners,  together  with  his  obligations  (or  the  rights 
of  others   over  him),   still  subsist   undiminished, — only  the  [  398  ] 
exertion  of  them  is,  for  the  most  part,  suspended  during  the 
time  of  his  captivity. 

The  prisoner  of  war  therefore  retains  a  right  to  dispose  of  §  220.    Tes- 
his  property,  particularly  in  case  of  death :  and,  as  there  is tament  of  a 

,,\      r.      *V         ,  **••*.         -L-   i.  •      0.1.  •      i    ii  prisoner  of 

nothing  m  the  state  of  captivity  which  can  in  this  latter  re-^ar 
spect  deprive  him  of  the  exercise  of  his  right,  the  testament 
of  a  prisoner  of  war  ought  to  be  valid  in  his  own  country, 
unless  rendered  void  by  some  inherent  defect. 

With  nations  which  have  established  the  indissolubility  of  ?  221.  Mar- 
the  marriage  ties,  or  have  ordained  that  they  should  continue  nage* 
for  life  unless  dissolved  by  the  judgment  of  a  court,  those 
ties  still  subsist,  notwithstanding  the  captivity  of  one  of  the 
parties,  who,  on  his  return  home,  is,  by  postliminium,  again 
entitled  to  all  his  matrimonial  rights. 

We  do  not  here  enter  into  a  detail  of  what  the  civil  laws  of  ?  222.    Re- 
particular  nations  have  ordained  with  respect  to  the  right  of 
postliminium :  we  content  ourselves  with  observing  that  such  - 

local  regulations  are  obligatory  on  the  subjects  of  the  state  nium,  esta- 
alone,  and  do  not  affect  foreigners.     Neither  do  we  here  ex-  blished  by 
amine  what  has  been  settled  on  that  head  by  treaties  :  those treaty  or 
particular  compacts  establish  merely  a  conventional  right, CU£ 
which  relates  only  to  the  contracting  parties.     Customs  con- 
firmed by  long  and  constant  use  are  obligatory  on  those  na- 
tions who  have  given  a  tacit  consent  to  them ;  and  they  are 
to  be  respected,  when  not  contrary  to  the  law  of  nature :  but 
those  which  involve  an  infringement  of  that  sacred  law  are 
faulty  and  invalid ;  and,  instead  of  conforming  to  such  customs, 
every  nation  is  bound  to  use  her  endeavours,  to  effect  their 
abolition.     Among  the  Romans  the   right  of  postliminium 
was  in  force,  even  in  times  of  profound  peace,  with  respect  to 
nations  with  which  Rome  had  neither  connections  of  friend- 
ship, rights  of  hospitality,  nor  alliance.*     This  was  because 
those  nations  were,  as  we  have  already  observed,  considered 
in  some  measure  as  enemies.     The  prevalence  of  milder  man- 
ners has  almost  everywhere  abolished  that  remnant  of  bar- 
barism. 

*  Digest,  lib.  xlix.  de  Capt  et  Postlim.  leg.  v.  3  ii. 
65  513 


399  OF   THE   RIGHT   OF 

BOOK  III. 
CHAP.   XV. 

CHAP.  XV. 

OF   THE   RIGHT   OF   PRIVATE   PERSONS   IN   WAR. 

§  223.  Sub-     THE  right  of  making  war,  as  we  have  shown  in  the  first 
jects  cannot  chapter  of  this  book,  solely  belongs  to  the  sovereign  power, 
commit  hos-  wnjcn  not  on}y  decides  whether  it  be  proper  to  undertake  the 
oiuLYso?"  war>  an(*  to  Declare  it,  but  likewise  directs  all  its  operations, 
vereign's      as  circumstances  of  the  utmost  importance  to  the  safety  of 
order.          the  state.     Subjects,  therefore,  cannot  of  themselves  take 
any  steps  in  this  aifair ;  nor  are  they  allowed  to  commit  any 
act  of  hostility  without  orders  from  their  sovereign.     Be  it 
understood,  however,  that,  under  the  head  of  "hostilities," 
we  do  not  here  mean  to  include  self-defence.     A  subject  may 
repel  the  violence  of  a  fellow-citizen  when  the  magistrate's 
assistance  is  not  at  hand ;  and  with  much  greater  reason  may 
he  defend  himself  against  the  unexpected  attacks  of  foreigners. 
§  224.  That      The  sovereign's  order,  which  commands  acts  of  hostility, 
order  may    and  gives  a  right  to  commit  them,  is  either  general  or  parti- 
be  general    cuiar>     ^Q  declaration  of  war,  which  enjoins  the  subjects  at 
larf"         large  to  attack  the  enemy's  subjects,  implies  a  general  order. 
The  generals,  officers,  soldiers,  privateers-men,  and  partisans, 
being  all  commissioned  by  the  sovereign,  make  war  by  virtue 
of  a  particular  order. 

g  225.  But,  though  an  order  from  the  sovereign  be  necessary  to 

Source  of  authorize  the  subjects  to  make  war,  that  necessity  wholly  re- 
the  neces-  8ults  from  the  laws  essential  to  every  political  society,  and 
sity  of  such  no^.  from  any  obligation  relative  to  the  enemy.  For,  when 
one  nation  takes  up  arms  against  another,  she  from  that  mo- 
ment declares  herself  an  enemy  to  all  the  individuals  of  the 
latter,  and  authorizes  them  to  treat  her  as  such.  What  right 
could  she  have  in  that  case  to  complain  of  any  acts  of  hos- 
tility committed  against  her  by  private  persons  without  orders 
from  their  superiors  ?  The  rule,  therefore,  of  which  we  here 
speak,  relates  rather  to  public  law  in  general,  than  to  the  law 
of  nations  properly  so  called,  or  to  the  principles  of  the  re- 
ciprocal obligations  of  nations. 

?  226.  Why  1^  we  confine  our  views  to  the  law  of  nations,  considered  in 
the  law  of  itself, — when  once  two  nations  are  engaged  in  war,  all  the 
nations  subjects  of  the  one  may  commit  hostilities  against  those  of 

s the  other'  and  do  them  a11  the  mischief  authorized  by  the 
s  state  of  war.  But,  should  two  nations  thus  encounter  each 
other  with  the  collective  weight  of  their  whole  force,  the  war 
would  become  much  more  bloody  and  destructive,  and  could 
hardly  be  terminated  otherwise  than  by  the  utter  extinction 
of  one  of  the  parties.  The  examples  of  ancient  wars  abun- 
dantly prove  the  truth  of  this  assertion  to  any  man  who  will 
for  a  moment  recall  to  mind  the  first  wars  waged  by  Home 

514 


PRIVATE   PERSONS   IN  WAR.  400 

against  the  popular  republics  by  which  she  was  surrounded.  BOOK  m. 
It  is  therefore  with  good  reason  that  the  contrary  practice .  CHAp-  *v-.. 
has  grown  into  a  custom  with  the  nations  of  Europe, — at  least 
with  those  that  keep  up  regular  standing  armies  or  bodies  of 
militia.  The  troops  alone  carry  on  the  war,  while  the  rest 
of  the  nation  remain  in  peace.  And  the  necessity  of  a  special 
order  to  act  is  so  thoroughly  established,  that,  even  after  a 
declaration  of  war  between  two  nations,  if  the  peasants  of 
themselves  commit  any  hostilities,  the  enemy  shows  them  no 
mercy,  but  hangs  them  up  as  he  would  so  many  robbers  or 
banditti.  The  crews  of  private  ships  of  war  stand  in  the  same 
predicament :  a  commission  from  their  sovereign  or  admiral 
can  alone,  in  case  they  are  captured,  insure  them  such  treat- 
ment as  is  given  to  prisoners  taken  in  regular  warfare. 

In  declarations  of  war,  however,  the  ancient  form  is  still  §  225".    Pre- 
retained,  by  which  the  subjects  in  general  are  ordered,  not  cise  mean- 
only  to  break  off  all  intercourse  with  the  enemy,  (179)  but  ^e°f  th 
also  to  attack  him.    Custom  interprets  this  general  order.    It 
authorizes,  indeed,  and  even  obliges  every  subject,  of  what- 
ever rank,  to  secure  the  persons  and  things  belonging  to  the 
enemy,  when  they  fall  into  his  hands  (179);  but  it  does  not 
invite  the  subjects  to  undertake  any  offensive  expedition  with- 
out a  commission  or  particular  order. 

There  are  occasions,  however,  when  the  subjects  may  reason-  g  228.  What 
ably  suppose  the  sovereign's  will;  and  act  in  consequence  of  private  per- 
his  tacit  command.    Thus,  although  the  operations  of  war  are  ^ndse^e 
by  custom  generally  confined  to  the  troops,  if  the  inhabitants  presuming 
of  a  strong  place,  taken  by  the  enemy,  have  not  promised  or  on  the  sove- 
sworn  submission  to  him,  and  should  find  a  favourable  oppor-  reign's  will, 
tunity  of  surprising  the  garrison,  and  recovering  the  place  for 
their  sovereign,  they  may  confidently  presume  that  the  prince 
will  approve  of  this  spirited  enterprise.     And  where  is  the 
man  that  shall  dare  to  censure  it  ?     It  is  true,  indeed,  that, 
if  the  townsmen  miscarry  in  the  attempt,  they  will  experience 
very  severe  treatment  from  the  enemy.     But  this  does  not 
prove  the  enterprise  to  be  unjust,  or  contrary  to  the  laws  of 
war.  The  enemy  makes  use  of  his  right,  of  the  right  of  arms, 
which  authorizes  him  to  call  in  the  aid  of  terror  to  a  certain 
degree,  in  order  that  the  subjects  of  the  sovereign  with  whom 

(179)  Hence  it  is  illegal  to  have  any  State*  v.  Barker,  Paine's   C.    C.   Rep. 

commercial  intercourse  with  an  enemy,  157.}     Thus,   Great  Britain   permitted 

or  even  to  pay  him  a  just  debt,  during  commercial  intercourse   with   some  of 

war.     Grotlus,  b.  iii.  c.  iv.  |  8;  Byn-  her  plantations,  whilst  under  capture 

kershoek,  b.  L  c.   iii.;    Dr.    Phillimore  by  the   French,  because   she   expected 

on  Licenses,  5;  The  Hoop,  1  Rob.  Rep.  to  recover  them   back.      See  observa- 

198;  Potts  v.  Bell,  8  Term  Rep.  548;  tions  in  The  Hoop,  1  Rob.  Rep.  209; 

Willson  v.   Patteson,    7    Taunt    439  j  but  these    exceptions    are    in    general 

3   Meriv.  R.  469 ;  2  Ves.  <t  Bea.  323 ;  carried  on  under  orders  in  council  and 

{Scholefield  v.  Eichelberger,  7  Pet  S.  C.  licenses.— C.     {See  The  William  Penn, 

Rep.  586.}     To  this  general  rule  there  3  Wash.  C.  C.  Rep.  4848.} 
are  sometimes   exceptions.      {The    U. 

515 


400  OF   THE   RIGHT   OF 


BOOK  m.    he  is  at  war  may  not  be  willing  to  venture  on  such  bold  under- 
CHAP.  xv.  takings,  the   success  of  which   might   prove   fatal   to  him. 
During  the  last  war,  the  inhabitants  of  Genoa  suddenly  took 
up  arms  of  their  own  accord,  and  drove  the  Austrians  from 
the  city :  and  the  republic  celebrates  an  annual  commemora- 
tion of  that  event  by  which  she  recovered  her  liberty. 
I  229.    Pri-      Persons  fitting  out  private  ships  to  cruise  against  the  enemy 
vateers.       acquire  the  property  of  whatever  captures  they  make,  as  a 
[  401  ]  compensation  for  their  disbursements,  and  for  the  risks  they 
run :  but  they  acquire  it  by  grant  from  the  sovereign,  who 
issues  out  commissions  to  them.     The  sovereign  allows  them 
either  the  whole  or  a  part  of  the  capture :  this  entirely  depends 
on  the  nature  of  the  contract  he  has  made  with  them. 

As  the  subjects  are  not  under  an  obligation  of  scrupulously 
weighing  the  justice  of  the  war,  which  indeed  they  have  not 
always  an  opportunity  of  being  thoroughly  acquainted  with, 
and  respecting  which  they  are  bound,  in  case  of  doubt,  to  rely 
on  the  sovereign's  judgment  (§  187), — they  unquestionably 
may  with  a  safe  conscience  serve  their  country  by  fitting  out 
privateers,  unless  the  war  be  evidently  unjust.  But,  on  the 
other  hand,  it  is  an  infamous  proceeding  on  the  part  of 
foreigners,  to  take  out  commissions  from  a  prince,  in  order  to 
commit  piratical  depredations  on  a  nation  which  is  perfectly 
innocent  with  respect  to  them.  The  thirst  of  gold  is  their 
only  inducement ;  nor  can  the  commission  they  have  received 
efface  the  infamy  of  their  conduct,  though  it  screens  them 
from  punishment.  Those  alone  are  excusable,  who  thus  assist 
a  nation  whose  cause  is  undoubtedly  just,  and  that  has  taken 
up  arms  with  no  other  view  than  that  of  defending  herself 
from  oppression.  They  would  even  deserve  praise  for  their 
exertions  in  such  a  cause,  if  the  hatred  of  oppression,  and  the 
love  of  justice,  rather  than  the  desire  of  riches,  stimulated 
them  to  generous  efforts,  and  induced  them  to  expose  their 
lives  or  fortunes  to  the  hazards  of  war. 

%  230.  Vo-  The  noble  view  of  gaining  instruction  in  the  art  of  war, 
lunteers.  an(j  ^us  acquiring  a  greater  degree  of  ability  to  render  use- 
ful services  to  their  country,  has  introduced  the  custom  of 
serving  as  volunteers  even  in  foreign  armies ;  and  the  practice 
is  undoubtedly  justified  by  the  sublimity  of  the  motive.  At 
present,  volunteers,  when  taken  by  the  enemy,  are  treated  as 
if  they  belonged  to  the  army  in  which  they  fight.  Nothing 
can  be  more  reasonable :  they  in  fact  join  that  army,  and 
unite  with  it  in  supporting  the  same  cause ;  and  it  makes  little 
difference  in  the  case,  whether  they  do  this  in  compliance 
with  any  obligation,  or  at  the  spontaneous  impulse  of  their 
own  free  choice. 

3  231.  What     Soldiers  can  undertake  nothing  without  the  express  or  tacit 

soldiers  and  command  of  their  officers.     To  obey  and  execute,  is  their 

ma^cTo™    Prov^nce> — not  to  act  at  tneir  own  discretion :  they  are  only 

instruments  in  the  hands  of  their  commanders.     Let  it  be 

516 


PRIVATE    PERSONS    IN    WAR.  401 

remembered  here,  that,  by  a  tacit  order,  I  mean  one  which  is  BOOK  m. 
necessarily  included  in  an  express  order,  or  in  the  functions  CHAP-  XY- 
with  which  a  person  is  intrusted  by  his  superior.  What  is 
said  of  soldiers  must  also  in  a  proper  degree  be  understood 
of  officers,  and  of  all  who  have  any  subordinate  command. 
Wherefore,  with  respect  to  things  which  are  not  intrusted  to 
their  charge,  they  may  both  be  considered  as  private  indi- 
viduals, who  are  not  to  undertake  any  thing  without  orders. 
The  obligation  of  the  military  is  even  more  strict,  as  the 
martial  law  expressly  forbids  acting  without  orders  ;  and  this 
discipline  is  so  necessary  that  it  scarcely  leaves  any  room  for 
presumption.  In  war,  an  enterprise  which  wears  a  very 
advantageous  appearance,  and  promises  almost  certain  success, 
may  nevertheless  be  attended  with  fatal  consequences.  It  [  402  ] 
would  be  dangerous,  in  such  a  case,  to  leave  the  decision  to 
the  judgment  of  men  in  subordinate  stations,  who  are  not 
acquainted  with  all  the  views  of  their  general,  and  who  do  not 
possess  an  equal  degree  of  knowledge  and  experience :  it  is 
therefore  not  to  be  presumed  that  he  intends  to  let  them  act 
at  their  own  discretion.  Fighting  without  orders  is  almost 
always  considered,  in  a  military  man,  as  fighting  contrary  to 
orders,  or  contrary  to  prohibition.  There  is,  therefore,  hardly 
any  case,  except  that  of  self-defence,  in  which  the  soldiers  and 
inferior  officers  may  act  without  orders.  In  that  one  case, 
the  orders  may  safely  be  presumed ;  or  rather,  the  right  of 
self-defence  naturally  belongs  to  every  one,  and  requires  no 
permission.  During  the  siege  of  Prague,  in  the  last  war,  a 
party  of  French  grenadiers  made  a  sally  without  orders  and 
without  officers, — possessed  themselves  of  a  battery,  spiked  a 
part  of  the  cannon,  and  brought  away  the  remainder  into  the 
city.  The  Roman  severity  would  have  punished  those  men 
with  death.  The  famous  example  of  the  consul  Manlius  is 
well  known,  who,  notwithstanding  the  victory  gained  by  his 
son,  caused  capital  punishment  to  be  inflicted  on  him  for 
having  engaged  the  enemy  without  orders.*  But  the  differ- 
ence of  times  and  manners  obliges  a  general  to  moderate  such 
severity.  The  mareschal  Bellisle  publicly  reprimanded  those 
brave  grenadiers,  but  secretly  caused  money  to  be  distributed  ,, 

among  them,  as  a  reward  for  their  courage  and  alacrity.  At 
another  famous  siege  in  the  same  war,  that  of  Coni,  the  private 
men  of  some  battalions  that  were  stationed  in  the  fosses, 
made,  of  their  own  accord,  during  the  absence  of  their  officers, 
a  vigorous  sortie,  which  was  attended  with  success.  Baron 
Leutrum  was  obliged  to  pardon  their  transgression,  lest  he 
should  damp  an  ardour  on  which  the  safety  of  the  place  en- 
tirely depended.  Such  inordinate  impetuosity  should  never- 
theless be  checked  as  far  as  possible  ;  since  it  may  eventually 
be  productive  of  fatal  consequences.  Avidius  Cassius  inflicted 


*  Tit  Liv.  lib.  viii.  cap.  vii. 

2T  517 


402  OF  THE  EIGHT  OF  PRIVATE  PERSONS  IN  WAR. 

BOOK  in.  capital  punishment  on  some  officers  of  his  army,  -who  had, 
CHAP,  xv.  wjthout  orders,  marched  forth  at  the  head  of  a  handful  of 
men,  to  surprise  a  body  of  three  thousand  enemies,  and  had 
succeeded  in  cutting  them  to  pieces.  This  rigour  he  justified, 
by  saying  that  there  might  have  been  an  ambuscade, — dicens, 
evenire  potuisse  ut  essent  insidice,  <fv?.* 

g  232.  whe-  Is  the  state  bound  to  indemnify  individuals  for  the  damages 
ther  the  ^hey  have  sustained  in  war  ?  We  may  learn  from  Grotius 
*na^  authors  are  divided  on  this  question.f  The  damages 
ify  the  under  consideration  are  to  be  distinguished  into  two  kinds, — 
subjects  for  those  done  by  the  state  itself  or  the  sovereign,  and  those  done 
damages  j^y  ^g  enemy.  Qf  the  first  kind,  some  are  done  deliberately 
war^aso)111  anc^  ^J  way  of  precaution,  as,  when  a  field,  a  house,  or  a 
garden,  belonging  to  a  private  person,  is  taken  for  the  pur- 
pose of  erecting  on  the  spot  a  town  rampart,  or  any  other 
\_  403  ]  piece  of  fortification, — or  when  his  standing  corn  or  his  store- 
houses are  destroyed,  to  prevent  their  being  of  use  to  the 
enemy.  Such  damages  are  to  be  made  good  to  the  individual, 
who  should  bear  only  his  quota  of  the  loss.(181)  But  there 
a*e  other  damages,  caused  by  inevitable  necessity,  as,  for 
instance,  the  destruction  caused  by  the  artillery  in  retaking  a 
town  from  the  enemy.  These  are  merely  accidents, — they 
are  misfortunes  which  chance  deals  out  to  the  proprietors  on 
whom  they  happen  to  fall.  The  sovereign,  indeed,  ought  to 
show  an  equitable  regard  for  the  sufferers,  if  the  situation  of 
his  affairs  will  admit  of  it :  but  no  action  lies  against  the  state 
for  misfortunes  of  this  nature, — for  losses  which  she  has  occa- 
sioned, not  wilfully,  but  through  necessity  and  by  mere  acci- 
dent, in  the  exertion  of  her  rights.  The  same  may  be  said 
of  damages  caused  by  the  enemy.  All  the  subjects  are  ex- 
posed to  such  damages :  and  wo  to  him  on  whom  they  fall ! 
The  members  of  a  society  may  well  encounter  such  risk  of 
property,  since  they  encounter  a  similar  risk  of  life  itself. 
Were  the  state  strictly  to  indemnify  all  those  whose  property 
is  injured  in  this  manner,  the  public  finances  would  soon  be 
exhausted ;  and  every  individual  in  the  state  would  be  obliged 
to  contribute  his  share  in  due  proportion, — a  thing  utterly 
impracticable.  Besides,  these  indemnifications  would  be  liable 
to  a  thousand  abuses,  and  there  would  be  no  end  of  the  par- 

*  Volcatius    Gallicanus,    quoted     by  tain,    the    regulating     act,    59     G.    3, 

Grotius,  book  iii.  chap,  xviii.  g  i.  n.  6.  c.  xxxi.  was   passed.      See  discussions 

(180)  On   the  conclusion  of  the  late  in  Hill  v.   Beardon,  2   Russell's    Rep. 

war  between  Great  Britain  and  France,  608. — C. 
it  was  stipulated  that  the  latter  should         f  Lib.  iii.  cap.  xx.  §  viii. 
make  compensation  for  the  amount  of         (181)  It  is  legal  to  take   possession 

the   confiscations    of  British   property,  of  these  for  the  benefit  of  the  commu- 

subject    to  certain   qualifications ;   and  nity,  and  no  action  lies  for  compensa- 

commissioners  were  appointed  by  each  tion,   nor    is    any   recoverable,    unless 

state   to  examine  and  adjudicate  upon  given  by  act  of  parliament.     4  Term 

the  claims,  and  as  regarded  Great  Bri-  Rep.  382. — C. 
618 


OF  VARIOUS   CONVENTIONS,    ETC.  403 

ticulars.     It  is  therefore  to  be  presumed  that  no  such  thing   BOOK  m. 
was  ever  intended  by  those  who  united  to  form  a  society.          CHAP,  xv. 

But  it  is  perfectly  consonant  to  the  duties  of  the  state  and 
the  sovereign,  and,  of  course,  perfectly  equitable,  and  even 
strictly  just,  to  relieve,  as  far  as  possible,  those  unhappy 
sufferers  who  have  been  ruined  by  the  ravages  of  war,  (182) 
as  likewise  to  take  care  of  a  family  whose  head  and  support 
has  lost  his  life  in  the  service  of  the  state.  There  are  many 
debts  which  are  considered  as  sacred  by  the  man  who  knows 
his  duty,  although  they  do  not  afford  any  ground  of  action 
against  him.* 


CHAP.  XVI. 

OF    VARIOUS    CONVENTIONS     MADE    DURING    THE    COURSE    OF  CHAP.  XYI. 
THE   WAR. 

WAR  would  become  too  cruel  and  destructive,  were  all  §  233. 
intercourse  between  enemies  absolutely  broken  off.     Accord- Truce  a?d 
ing  to  the  observation  of  Grotius,f  there   still  subsists  a 
friendly  intercourse  in  war,  as  Virgil  j  and  Tacitus§  have  ex- 
pressed it.     The  occurrences  and  events  of  war  lay  enemies 
under  the   necessity  of  entering  into  various   conventions. 
As  we  have  already  treated  in  general  of  the  observance  of 
faith  between  enemies,  it  is  unnecessary  for  us  in  this  place 
to  prove  the  obligation  of  faithfully  acting  up  to  those  con- 
ventions made  in  war :  it  therefore  only  remains  to  explain 

(182)  See  note  (180),  p.  402.  states-general  adopted  measures  fraught 
"*  It  is  in  general  the  indispensable  with  consummate  wisdom.  They  pub- 
duty  of  every  sovereign  to  adopt  the  lished  an  edict,  in  which,  after  having 
most  efficacious  measures  for  the  pro-  described  the  destructive  consequences 
tection  of  his  subjects  engaged  in  war,  of  the  Spanish  barbarity,  they  exhorted 
in  order  that  they  may  suffer  by  it  as  the  Flemings  to  attend  to  their  own 
little  as  possible,  instead  of  voluntarily  preservation,  and  threatened  to  retaliate 
exposing  them  to  greater  evils.  During  on  all  who  should  obey  the  cruel  ordi- 
the  wars  in  the  Netherlands,  Philip  the  nance  of  Philip.  By  such  conduct  they 
Second  prohibited  the  release  or  ex-  put  an  end  to  the  dreadful  proceedings 
change  of  prisoners  of  war.  He  for-  to  which  it  had  given  birth. — Edit  A.  D. 
bade  the  peasants,  under  pain  of  death,  1797. 
to  pay  any  contributions  with  a  view  to  f  Lib.  iii.  cap.  xxi.  g  i. 

purchase  an  immunity  from  pillage  and        ^  Belli    commercia 

conflagration ;    (183)    and,    under    the  Turnus 

same   penalty,   prohibited   the  use    of  Sustulit  ista  prior. — .35n.  x.  532. 

safeguards   and  protections.     In   oppo-        |  Ann.  lib.  xiv.  cap.  xxxiii. 
sition  to  this  barbarous  ordinance,  the 

(183)  Our  enactments  against  ran-  c.  72 ;)  Marshall  on  Insurance,  431 ;  but 
soming  ships  or  property  taken  by  an  exceptions  in  cases  of  extreme  necessity 
enemy  are  in  the  same  spirit ;  (22  Geo.  may  be  allowed  by  the  court  of  Ad- 
2,  c.  25;  43  Geo.  3,  c.  165;  45  Geo.  3,  miralty.  Id.  Ibid. 

519 


404  OF  VARIOUS   CONVENTIONS,    ETC. 

BOOK  ni.  the  nature  of  them.  Sometimes  it  is  agreed  to  suspend 
CHAP,  xvi.  hostilities  for  a  certain  time ;  and,  if  this  convention  be  made 
but  for  a  very  short  period,  or  only  regards  some  particular 
place,  it  is  called  a  cessation  or  suspension  of  arms.  Such 
are  those  conventions  made  for  the  purpose  of  burying  the 
dead  after  an  assault  or  a  battle,  and  for  a  parley,  or  a  con- 
ference between  the  generals  >of  the  hostile  armies.  If  the 
agreement  be  for  a  more  considerable  length  of  time,  and 
especially  if  general,  it  is  more  particularly  distinguished  by 
the  appellation  of  a  truce.  Many  people  use  both  expressions 
indiscriminately. 

g  234.  Does      The  truce  or  suspension  of  arms  does  not  terminate  the 
not  tenni-    war .  ft  only  suspends  its  operations. 

nate  th  ^  truce  is  either  partial  or  general.     By  the  former,  hos- 

.  23'.    A     tilities  are  suspended  only  in  certain  places,  as  between  a 
truce  is        town  and  the  army  besieging  it.     By  the  latter,  they  are  to 
either  par-    cease  generally,  and  in  all  places,  between  the  belligerent 
tial  or  gene-  powers.     Partial  truces  may  also  admit  of  a  distinction  with 
respect  to  acts  of  hostility,  or  to  persons ;  that  is  to  say,  the 
parties  may  agree  to  abstain  from  certain  acts  of  hostility 
during  a  limited  time,  or  two  armies  may  mutually  conclude 
a  truce  or  suspension  of  arms  without  regard  to  any  particu- 
lar place. 

g  236.    Ge-      A  general  truce,  made  for  many  years,  differs  from  a  peace 

nerai  truce   jn  little  else  than  in  leaving  the  question  which  was  the  ori- 

for  many      g}na}  ground  of  the  war  still  undecided.     When  two  nations 

are  weary  of  hostilities,  and  yet  cannot  agree  on  the  point 

which  constitutes  the  subject  of  their  dispute,  they  generally 

have  recourse  to  this  kind  of  agreement.     Thus,  instead  of 

peace,  long  truces  only  have  usually  been  made  between  the 

[  405  ]  Christains  and  the  Turks, — sometimes  from  a  false  spirit  of 

religion ;  at  other  times,  because  neither  party  were  willing 

to  acknowledge  the  other  as  lawful  owners  of  their  respective 

possessions. 

g  237.  By  It  is  necessary  to  the  validity  of  an  agreement,  that  it  be 
whom  these  made  by  one  who  possesses  competent  powers.  Every  thing 
ma^he^on  ^one  *n  war  IS  done  by  the  authority  of  the  sovereign,  who 
eluded!  C0n~  a^one  nas  the  right  both  of  undertaking  the  war,  and  direct- 
ing its  operations.  (§  4)  But,  from  the  impossibility  of  exe- 
cuting every  thing  by  himself,  he  must  necessarily  communi- 
cate part  of  his  power  to  his  ministers  and  officers.  The 
question,  therefore,  is,  to  determine  what  are  the  things  of 
which  the  sovereign  reserves  the  management  in  his  own 
hands,  and  what  those  are  which  he  is  naturally  presumed  to 
intrust  to  the  ministers  of  his  will,  to  the  generals  and  other 
officers  employed  in  military  operations.  We  have  above 
(Book  II.  §  207)  laid  down  and  explained  the  principle  which 
is  to  serve  as  a  general  rule  on  this  subject.  If  the  sovereign 
has  not  given  any  special  mandate,  the  person  commanding 
in  his  name  is  held  to  be  invested  with  all  the  powers  neces- 

520 


OF  VARIOUS   CONVENTIONS,    ETC.  405 

sary  for  the  reasonable  and  salutary  exercise  of  his  functions,  BOOK  m. 
— for  every  thing  which  naturally  follows  from  his  commission.  .CHAP-  XYr- 
Every  thing  beyond  that  is  reserved  to  the  sovereign,  who  is 
not  supposed  to  have  delegated  a  greater  portion  of  his  power 
than  is  necessary  for  the  good  of  his  affairs.  According  to 
this  rule,  a  general  truce  can  only  be  concluded  by  the  sove- 
reign himself,  or  by  some  person  on  whom  he  has  expressly 
conferred  a  power  for  that  purpose.  For,  it  is  by  no  means 
necessary  to  the  success  of  the  war,  that  a  general  should  be 
invested  with  such  an  extensive  authority :  it  would  exceed 
the  limits  of  his  functions,  which  consist  in  directing  the  mili- 
tary operations  in  the  place  where  he  has  the  command,  and 
not  in  regulating  the  general  interests  of  the  state.  The 
conclusion  of  a  general  truce  is  a  matter  of  so  high  import- 
ance, that  the  sovereign  is  always  presumed  to  have  reserved 
it  in  his  own  hands.  So  extensive  a  power  suits  only  the 
viceroy  or  governor  of  a  distant  country,  for  the  territories 
under  him ;  and  even  in  this  case,  if  the  truce  be  for  a  num- 
ber of  years,  it  is  natural  to  suppose  the  sovereign's  ratifica- 
tion necessary.  The  Roman  consuls,  and  other  commanders, 
had  a  power  to  grant  general  truces  for  the  term  of  their 
commission  ;  but,  if  that  term  was  considerable,  or  the  truce 
made  for  a  longer  time,  it  required  the  ratification  of  the 
senate  and  people.  Even  a  partial  truce,  when  for  a  long 
time,  seems  also  to  exceed  the  ordinary  powers  of  a  general ; 
and  he  can  only  conclude  it  under  a  reservation  of  its  being 
ratified  by  the  sovereign  authority. 

But,  as  to  partial  truces  for  a  short  period,  it  is  often  ne- 
cessary, and  almost  always  proper,  that  the  general  should 
have  a  power  to  conclude  them : — it  is  necessary,  when  he  can- 
not wait  for  the  sovereign's  consent ;  it  is  proper  on  those 
occasions  when  the  truce  can  only  tend  to  spare  the  effusion 
of  blood,  and  to  promote  the  mutual  advantage  of  the  con- 
tracting parties.  With  such  a  power,  therefore,  the  general 
or  commander  in  chief  is  naturally  supposed  to  be  invested.  [  406  ] 
Thus,  the  governor  of  a  town,  and  the  general  besieging  it, 
may  agree  on  a  cessation  of  arms,  for  the  purpose  of  burying 
the  dead,  or  of  coming  to  a  parley:  they  may  even  settle  a 
truce  for  some  months,  on  condition  that  the  town,  if  not 
relieved  within  that  time,  shall  surrender,  &c.  Conventions 
of  this  kind  only  tend  to  mitigate  the  evils  of  war,  and  are 
not  likely  to  prove  detrimental  to  any  one. 

All  these  truces  and  suspensions  of  arms  are  concluded  by  g  238.   The 
the  authority  of  the  sovereign,  who  consents  to  some  of  them  sovereign's 
in  his  own  person,  and  to  others  through  the  ministry  of  Ws^/in 
generals  and  officers.     His  faith  is  pledged  by  such  agree- them> 
ments,  and  he  is  bound  to  enforce  their  observance. 

The  truce  binds  the  contracting  parties  from  the  moment  f  239.  When 
of  its  being  concluded,  but  cannot  have  the  force  of  a  law, 
with  regard  to  the  subjects  on  both  sides,  till  it  has  been  so- 

66  2i2  521 


406  OF  VARIOUS  CONVENTIONS,   ETC. 

BOOK  m.  lemnly  proclaimed :  and,  as  an  unknown  law  imposes  no  obh- 
CHAP.  XVI-  gation,  the  truce  does  not  become  binding  on  the  subjects 
begins  to  be  Qn^{\  <juiv  notified  to  them.  Hence,  if,  before  they  can  have 
o  hgatory.  0|jj.aine(j  certain  information  of  its  being  concluded,  they  com- 
mit any  act  contrary  to  it — any  act  of  hostility — they  are  not 
punishable.  But,  as  the  sovereign  is  bound  to  fulfil  his 
promises,  it  is  incumbent  on  him  to  cause  restitution  to  be 
made  of  all  prizes  taken  subsequent  to  the  period  when  the 
truce  should  have  commenced.  The  subjects  who,  through 
ignorance  of  its  existence,  have  failed  to  observe  it,  are  not 
obliged  to  offer  an  indemnification,  any  more  than  their  sove- 
reign, who  was  unable  to  notify  it  to  them  sooner :  the  non- 
observance  of  the  truce,  in  this  case,  is  merely  an  accident, 
not  imputable  to  any  fault  on  his  part  or  on  theirs.  A  ship 
being  out  at  sea  at  the  time  when  the  truce  is  published,  meets 
with  a  ship  belonging  to  the  enemy,  and  sinks  her :  as  there  is  no 
guilt  in  this  case,  she  is  not  liable  to  pay  any  damage.  If  she 
has  made  a  capture  of  the  vessel,  all  the  obligation  she  lies 
under  is  to  restore  the  prize,  as  she  must  not  retain  it  in  vio- 
lation of  the  truce.  But  those  who  should,  through  their  own 
fault,  remain  ignorant  of  the  publication  of  the  truce,  would 
be  bound  to  repair  any  damage  they  had  caused,  contrary  to 
its  tenor.  The  simple  commission  of  a  fault,  and  especially 
of  a  slight  one,  may,  to  a  certain  degree,  be  suffered  to  pass 
with  impunity ;  and  it  certainly  does  not  deserve  to  be  pu- 
nished with  equal  severity  as  a  premeditated  transgression : 
but  it  furnishes  no  plea  against  the  obligation  to  repair  the 
damages  accruing.  In  order,  as  far  as  possible,  to  obviate 
every  difficulty,  it  is  usual  with  sovereigns,  in  their  truces  as 
well  as  in  their  treaties  of  peace,  to  assign  different  periods 
for  the  cessation  of  hostilities,  according  to  the  situation  and 
distance  of  places. 

g  240.  Pub-      Since  a  truce  cannot  be  obligatory  on  the  subjects  unless 
lication  of    known  to  them,  it  must  be  solemnly  published  in  all  the  places 
the  truce.     where  it  is  intended  that  it  should  be  observed, 
g  241.   Sub-     If  any  of  the  subjects,  whether  military  men  or  private 
jects  con-     citizens,  offend  against  the  truce,  this  is  no  violation  of  the 
thTJ^f     public  faith ;  nor  is  the  truce  thereby  broken.     But  the  de- 
linquents should  be  compelled  to  make  ample  compensation 
for  the  damage,  and  severely  punished.     Should  their  sove- 
[  407  ]  reign  refuse  to  do  justice,  on  the  complaints  of  the  party  injured, 
he  thereby  becomes  accessory  to  the  trespass,  and  violates 
the  truce. 

g  242.  Vio-      Now,  if  one  of  the  contracting  parties,  or  any  person  by 
lation  of      nis  order,  or  even  with  his  simple  consent,  commits  any  act 
the  truce.     contrary  to  the  truce,  it  is  an  injury  to  the  other  contracting 
party :  the  truce  is  dissolved ;  and  the  injured  party  is  en- 
titled immediately  to  take  up  arms,  not  only  for  the  purpose 
of  renewing  the  operations  of  the  war,  but  also  of  avenging 
the  recent  injury  offered  to  him. 

522 


OF  VARIOUS   CONVENTIONS,    ETC.  407 

Sometimes   a   penalty   on   the   infractor  of  *  the  truce   is    BOOK  m. 
reciprocally   stipulated;    and   then  the  truce   is  not  imme-  CHAP'  *YI' 


diately  broken  on  the  first  infraction.  If  the  party  offending  ?  243.  Sti- 
submits  to  the  penalty,  and  repairs  the  damage,  the  truce  Pulation  of 
still  subsists,  and  the  offended  party  has  nothing  further  to  aga^st'the 
claim.  But,  if  an  alternative  has  been  agreed  on,  viz.  that,  infractor. 
in  case  of  an  infraction,  the  delinquent  shall  suffer  a  certain 
penalty,  or  the  truce  shall  be  broken,  it  is  the  injured  party 
who  has  the  choice  of  insisting  on  the  penalty  or  taking 
advantage  of  his  right  to  recommence  hostilities  :  for,  if  this 
were  left  at  the  option  of  the  infractor,  the  stipulation  of 
the  alternative  would  be  nugatory,  since,  by  refusing  to 
submit  to  the  penalty  simply  stipulated,  he  would  break  the 
compact,  and  thereby  give  the  injured  party  a  right  to  take 
up  arms  again.  Besides,  in  cautionary  clauses  of  this 
kind,  the  alternative  is  not  supposed  to  be  introduced  in 
favour  of  him  who  fails  in  his  engagements  ;  and  it  would 
be  absurd  to  suppose  that  he  reserves  to  himself  the  ad- 
vantage of  breaking  them  by  his  infraction  rather  than  un- 
dergo the  penalty.  He  might  as  well  break  them  at  once 
openly.  The  only  object  of  the  penal  clause  is  to  secure 
the  truce  from  being  so  easily  broken  ;  and  there  can  be  no 
other  reason  for  introducing  it  with  an  alternative,  than  that 
of  leaving  to  the  injured  party  a  right,  if  he  thinks  fit,  to 
dissolve  a  compact  from  which  the  behaviour  of  the  enemy 
shows  him  he  has  little  security  to  expect. 

It  is  necessary  that  the  time  of  the  truce  be  accurately  ?  244.  Time 
specified,  in  order  to  prevent  all  doubt  or  dispute  respecting  of  the  truce- 
the  period  of  its  commencement,  and  that  of  its  expiration. 
The  French  language,  extremely  clear  and  precise,  for 
those  who  know  how  to  use  it  with  propriety,  furnishes 
expressions  which  bid  defiance  to  the  most  subtle  chicanery. 
The  words  "inclusively"  and  "exclusively"  banish  all 
ambiguity  which  may  happen  to  be  in  the  convention,  with 
regard  to  the  two  terms  of  the  truce  —  its  beginning  and 
end.  For  instance,  if  it  be  said  that  "  the  truce  shall  last 
from  the  first  of  March  inclusively,  until  the  fifteenth  of 
April,  also  inclusively,"  there  can  remain  no  doubt  ;  whereas, 
if  the  words  had  simply  been,  "  from  the  first  of  March  until 
the  15th  of  April,"  it  might  be  disputed  whether  those  [  408  ] 
two  days,  mentioned  as  the  initial  and  final  terms  of  the 
truce,  were  comprehended  in  the  treaty  or  not  :  and  indeed 
authors  are  divided  on  this  question.  As  to  the  former  of 
those  two  days,  it  seems,  beyond  all  question,  to  be  com- 
prised in  the  truce  :  for,  if  it  be  agreed,  that  there  shall  be  a 
truce  from  the  first  of  March,  this  naturally  means  that 
hostilities  shall  cease  on  the  first  of  March.  As  to  the 
latter  day,  there  is  something  more  of  doubt,  —  the  ex- 
pression "until"  seeming  to  separate  it  from  the  time  of  the 
armistice.  However,  as  we  often  say  "  until"  such  a  day 

523 


408  OF   VAKIOUS    CONVENTIONS,  ETC. 

BOOK  HI.  "inclusively,"  the  word  "until"  is  not  necessarily  exclusive, 
CHAP.  XTI.  accordjDg  to  the  genius  of  the  language.  And  as  a  truce 
which  spares  the  effusion  of  human  blood,  is  no  doubt  a 
thing  of  a  favourable  nature,  perhaps  the  safest  way  is  to 
include  in  it  the  very  day  of  the  term.  Circumstances  may 
also  help  to  ascertain  the  meaning :  but  it  is  very  wrong  not 
to  remove  all  ambiguity,  when  it  may  be  done  by  the  addi- 
tion of  a  single  word. 

In  national  compacts,  the  word  "day"  is  to  be  understood 
of  a  natural  day,  since  it  is  in  this  meaning  that  a  day  is  the 
common  measure  of  time  among  nations.  The  computation 
by  civil  days  days  owes  its  origin  to  the  civil  law  of  each  nation, 
and  varies  in  different  countries.  The  natural  day  begins 
at  sunrise,  and  lasts  twenty-four  hours,  or  one  diurnal  re- 
volution of  the  sun.  If,  therefore,  a  truce  of  a  hundred 
days  be  agreed  on,  to  begin  on  the  first  of  March,  the  truce 
begins  at  sunrise  on  the  first  of  March,  and  is  to  continue  a 
hundred  days  of  twenty-four  hours  each.  But,  as  the  sun 
does  not  rise  at  the  same  hour  throughout  the  whole  year, 
the  parties,  in  order  to  avoid  an  overstrained  nicety,  and  a 
degree  of  chicane  unbecoming  that  candour  which  should 
prevail  in  conventions  of  this  kind,  ought  certainly  to  un- 
derstand that  the  truce  expires,  as  it  began,  at  the  rising  of 
the  sun.  The  term  of  a  day  is  meant  from  one  sun  to  the 
other,  without  quibbling  or  disputing  about  the  difference 
of  a  few  minutes  in  the  time  of  his  rising.  He  who,  having 
made  a  truce  for  a  hundred  days,  beginning  on  the  twenty- 
first  of  June,  when  the  sun  rises  about  four  o'clock,  should, 
on  the  day  the  truce  is  to  end,  take  up  arms  at  the  same 
hour,  and  surprise  his  enemy  before  sunrise,  would  certainly 
be  considered  as  guilty  of  a  mean  and  perfidious  chicanery. 

If  no  term  has  been  specified  for  the  commencement  of  the 
truce,  the  contracting  parties,  being  bound  by  it  immediately 
on  its  conclusion  (§  239),  ought  to  have  it  published  without 
delay,  in  order  that  it  may  be  punctually  observed :  for,  it 
becomes  binding  on  the  subjects  only  from  the  time  when 
it  is  duly  published  with  respect  to  them  (Ibid.) ;  and  it 
begins  to  take  effect  only  from  the  moment  of  the  first  pub- 
lication, unless  otherwise  settled  by  the  terms  of  the  agree- 
ment. 

g  245.  Ef-  The  general  effect  of  a  truce  is  that  every  act  of  hostility 
fects  of  a  shall  absolutely  cease.  And,  in  order  to  obviate  all  dispute 
^uc^Jehdat  respecting  the  acts  which  may  be  termed  hostile,  the  general 
or  not.W<iur-  ru^e  *s>  tnat>  during  the  truce,  each  party  may,  within  his 
ing  its  con-  own  territories,  and  in  the  places  where  he  is  master,  do 
tinuance.  whatever  he  would  have  a  right  to  do  in  time  of  profound 
1st  Rule :—  peace.  Thus,  a  truce  does  not  deprive  a  sovereign  of  the 
ma,0  dcTat7  liDerty  of  levying  soldiers,  assembling  an  army  in  his  own 
home  what  dominions,  marching  troops  within  the  country,  and  even 
they  hare  a  calling  in  auxiliaries,  or  repairing  the  fortifications  of  a  town 

524 


OF   VARIOUS   CONVENTIONS,   ETC.  409 

which  is  not  actually  besieged.     As  he  has  a  right  to  do  all    BOOK  m. 
these  things  in  time  of  peace,  the  truce  does  not  tie  up  his  cnAP-  XYIi 
hands.     Can  it  be  supposed  that,  by  such  a  compact,  he  meant  fight to  do 
to  debar  himself  from  executing  things  which  the  continuation in  time  of 
of  hostilities  could  not  prevent  him  from  doing  ? 

But  to  take  advantage  of  the  cessation  of  arms  in  order  to  §  246.   2d 
execute  without  danger  certain  things  which  are  prejudicial Rule  =— Not 
to  the  enemy,  and  which  could  not  have  been  safely  under- to  take  ad~ 
taken  during  the  continuance  of  hostilities,  is  circum  venting  ^truce^n 
and  deceiving  the  enemy  with  whom  the  compact  has  been  doing  what 
made :  it  is  a  breach  of  the  truce.     By  this  second  general  hostilities 
rule  we  may  solve  several  particular  cases. 

The  truce  concluded  between  the  governor  of  a  town  and  f^n  ^ 
the  general  besieging  it,  deprives  both  of  the  liberty  of  con-jnstance 
tinuing  their  works.  With  regard  to  the  latter,  this  is  mani-  continuing 
fest, — his  works  being  acts  of  hostility.  But  neither  can  the  the  works 
governor,  on  his  part,  avail  himself  of  the  armistice,  for  the  of  a  sie.sff 
purpose  of  repairing  the  breaches  or  erecting  new  fortifica-  J^che™* 
tions.  The  artillery  of  the  besiegers  does  not  allow  him  to 
carry  on  such  works  with  impunity  during  the  continuance  of 
hostilities :  it  would  therefore  be  detrimental  to  them  that  he 
should  employ  the  truce  in  this  manner :  and  they  are  under 
no  obligation  of  submitting  to  be  so  far  imposed  upon :  they 
will  with  good  reason  consider  such  an  attempt  as  an  infrac- 
tion of  the  truce.  But  the  suspension  of  arms  does  not  hinder 
the  governor  from  continuing  within  his  town  such  works  as 
were  not  liable  to  be  impeded  by  the  attacks  or  fire  of  the 
enemy.  At  the  last  siege  of  Tournay,  after  the  surrender  of 
the  town,  an  armistice  was  agreed  on ;  during  the  continuance 
of  which,  the  governor  permitted  the  French  to  make  all  the 
necessary  preparations  for  attacking  the  citadel,  to  carry  on 
their  works,  and  erect  their  batteries, — because  the  governor, 
on  his  part,  was  in  the  mean  time  busily  employed  within,  in 
clearing  away  the  rubbish  with  which  the  blowing  up  of  a  ma- 
gazine had  filled  the  citadel,  and  was  erecting  batteries  on  the 
ramparts.  But  all  this  he  might  have  performed  with  little 
or  no  danger,  even  if  the  operations  of  the  siege  had  com- 
menced ;  whereas  the  French  could  not  have  carried  on  their 
works  with  such  expedition,  or  made  their  approaches  and 
erected  their  batteries  without  losing  a  great  number  of  men. 
There  was  therefore  no  equality  in  the  case ;  and,  on  that 
footing,  the  truce  was  entirely  in  favour  of  the  besiegers :  and, 
in  consequence  of  it,  the  capture  of  the  citadel  took  place 
sooner,  probably,  by  a  fortnight,  than  it  would  otherwise  have 
happened. 

If  the  truce  be  concluded  either  for  the  purpose  of  settling  g  248.   or 
the  terms  of  the  capitulation  or  of  waiting  for  the  orders  of  introducing 
the  respective  sovereigns,  the  besieged  governor  cannot  make succours' 
use  of  it  as  a  convenient  opportunity  to  introduce  succours  or 
ammunition  into  the  town :  for,  this  would  be  taking  an  undue 

525 


410  OF   VARIOUS   CONVENTIONS,    ETC. 

BOOK  in.    advantage  of  the  armistice  for  the  purpose  of  deceiving  the 

CHAP,  xvi.  enemy — a  conduct  which  is   inconsistent  with  candour  and 

honesty.      The  spirit  of  such  a  compact  evidently  imports 

that  all  things  shall  remain  as  they  were  at  the  moment  of  its 

conclusion. 

§249.  Dis-  But  this  is  not  to  be  extended  to  a  suspension  of  arms 
tinction  of  a  agree^  on  for  S0me  particular  'circumstance,  as,  for  instance, 
case!0  burying  the  dead.  In  this  case,  the  truce  is  to  be  interpreted, 
with  a  view  to  its  immediate  object.  Accordingly,  the  firing 
ceases,  either  in  all  quarters,  or  only  in  a  single  point  of 
attack,  pursuant  to  agreement,  that  each  party  may  freely 
carry  off  their  dead :  and  during  this  intermission  of  the  can- 
nonade, it  is  not  allowable  to  carry  on  any  works  which  the 
firing  would  have  impeded.  This  would  be  taking  an  undue 
advantage  of  the  armistice,  and  consequently  a  violation  of 
it.  But  it  is  perfectly  justifiable  in  the  governor,  during 
such  a  cessation  of  hostilities,  silently  to  introduce  a  reinforce- 
ment in  some  quarter  remote  from  the  point  of  attack.  If  the 
besieger,  lulled  by  such  an  armistice,  abates  in  his  vigilance, 
he  must  abide  the  consequences.  The  armistice  of  itself  does 
not  facilitate  the  entrance  of  that  reinforcement. 

g  250.  Re-  Likewise,  if  an  army  in  a  bad  position  proposes  and  con- 
treat  of  an  ciu(jes  an  armistice  for  the  purpose  of  burying  the  dead  after 
iTsus  en"03  a  Da*^ej  it  cannot  pretend,  during  the  suspension  of  arms,  to 
sion  of  hos-  extricate  itself  from  its  disadvantageous  situation,  and  to 
tilities.  march  off  unmolested,  in  sight  of  the  enemy.  This  would  be 
availing  itself  of  the  compact  in  order  to  effect  a  purpose 
which  it  could  not  otherwise  have  accomplished.  This  would 
be  laying  a  snare :  and  conventions  must  not  be  converted 
into  snares.  The  enemy,  therefore,  may  justly  obstruct  the 
motions  of  that  army  the  moment  it  attempts  to  quit  its  sta- 
tion :  but,  if  it  silently  files  off  in  the  rear,  and  thus  reaches 
a  safer  position,  it  will  not  be  guilty  of  a  breach  of  faith ; 
since  nothing  more  is  implied  by  a  suspension  of  arms  for  the 
burial  of  the  dead,  than  that  neither  party  shall  attack  the 
other  whilst  this  office  of  humanity  is  performing.  The 
enemy,  therefore,  can  only  blame  his  own  remissness : — he 
ought  to  have  stipulated,  that,  during  the  cessation  of  hosti- 
lities, neither  party  should  quit  their  post:  or  it  was  his  bu- 
siness vigilantly  to  watch  the  motions  of  the  hostile  army : 
and  on  perceiving  their  design,  he  was  at  liberty  to  oppose  it. 
It  is  a  very  justifiable  stratagem  to  propose  a  cessation  of 
arms  for  a  particular  object,  with  a  view  of  lulling  the  enemy's 
vigilance,  and  covering  a  design  of  retreating. 

But,  if  the  truce  be  not  made  for  any  particular  object 
alone,  we  cannot  honourably  avail  ourselves  of  it  in  order  to 
gain  an  advantage,  as,  for  instance,  to  secure  an  important 
post,  or  to  advance  into  the  enemy's  country.  The  latter 
step  would  indeed  be  a  violation  of  the  truce ;  for,  every  advance 
into  the  enemy's  country  is  an  act  of  hostility. 

526 


OF  VARIOUS   CONVENTIONS,    ETC.  411 

Now,  as  a  truce  suspends  hostilities  without  putting  an  end    BOOK  m. 
to  the  war,  every  thing  must,  during  the  continuance  of  the  , 


CHA 


truce,  be  suffered  to  remain  in  its  existing  state,  in  all  places  g  251.    3d 
of  which  the  possession  is  contested  :  nor  is  it  lawful,  in  such  Rule  ^No- 
places, to  attempt  any  thing  to  the  prejudice  of  the  enemy.  thing  to  be 
This  is  a  third  general  rule.  TC^L 

When  the  enemy  withdraws  his  troops  from  a  place,  and  places,  but 
absolutely  quits  it,  his  conduct  sufficiently  shows  that  he  does  every  thing 
not  intend  to  occupy  it  any  longer:  and  in  this  case  we  may^^ieftas 
lawfully  take  possession  of  it  during  the  truce.     But  if,  by  J  ^ 
any  indication,  it  appears  that  a  post,  an  open  town,  or  a  §  252-  Places 
village,  is  not  relinquished  by  the  enemy,  and  that,  though  n"1"^^ 
he  neglects  to  keep  it  guarded,  he  still  maintains  his  rights  ^f  enemy/ 
and  claims  to  it,  the  truce  forbids  us  to  seize  upon  it.     To 
take  away  from  the  enemy  what  he  is  disposed  to  retain,  is 
an  act  of  hostility. 

It  is  also  an  undoubted  act  of  hostility  to  receive  towns  or  g  253.  Sub- 
provinces  inclined  to  withdraw  from  the  sovereignty  of  the  jects  in- 
enemy,  and  give  themselves  up  to  us.     We  therefore  cannot  clined  io.  re~ 
receive  them  during  the  continuance  of  the  truce,  which  wholly  thei/prince 
suspends  all  hostile  proceedings.  not  to  be  re- 

Far  more  unlawful  it  is,  during  that  period,  to  instigate  the  ceived  dur- 
subjects  of  the  enemy  to  revolt,  or  to  tamper  with  the  fidelity  ing  the 
of  his  governors  and  garrisons.     These  are  not  only  hostile  truce  ' 
proceedings,  but  odious  acts  of  hostility  (§  180).     As  to  de-  |e2g5*;  ™uch 
serters  and  fugitives,  they  may  be  received  during  the  truce,  solicited  to 
since  they  are  received  even  in  time  of  peace,  when  there  is  treason. 
no  treaty  to  the  contrary.     And,  even  if  such  a  treaty  did 
exist,  its  effect  is  annulled,  or  at  least  suspended,  by  the  war 
which  has  since  taken  place. 

To  seize  persons  or  things  belonging  to  the  enemy,  when  §  255.    Per- 
he  has  not,  by  any  particular  fault  on  his  side,  afforded  us  sons  or  ef- 
grounds  for  such  seizure,  is  an  act  of  hostility,  and  conse-  ^f£  n^te°0e" 
quently  not  allowable  during  a  truce.  be  geized 

Since  the  right  of  postliminium  is  founded  only  on  the  during  the 
state  of  war  (Chap.  XIV.  of  this  Book),  it  cannot  take  effect  t™06- 
during  the  truce,  which  suspends  all  the  acts  of  war,  and  ?  256.  Right 
leaves  every  thing  in  its  existing  state  (§  251).     Even  pri-  °f  P°stlimi- 
soners  cannot  during  that  season  withdraw  from  the  power  °^m  c 


truce. 


of  the  enemy,  in  order  to  recover  their  former  condition :  for 
the  enemy  has  a  right  to  detain  them  while  the  war  continues ; 
and  it  is  only  on  its  conclusion  that  his  right  over  their  liberty 
expires  (§  148). 

During  the  truce,  especially  if  made  for  a  long  period,  it  ?  257.   in- 
is  naturally  allowable  for  enemies  to  pass  and  repass  to  and tercourse 
from  each  other's  country,  in  the  same  manner  as  it  is  allowed  J^g  a 
in  time  of  peace,  since  all  hostilities  are  now  suspended.   But  truce, 
each  of  the  sovereigns  is  at  liberty,  as  he  would  be  in  time  of 
peace,  to  adopt  every  precaution  which  may  be  necessary  to 
pi  event  this  intercourse  from  becoming  prejudicial  to  him. 

527 


412  OF   VARIOUS   CONVENTIONS,    ETC. 

BOOK  ni.    He  has  just  grounds  of  suspicion  against  people  with  whom 
CHAP,  xvr.  ^  jg  goon  to  recommence  hostilities.     He  may  even  declare, 
at  the  time  of  making  the  truce,  that  he  will  admit  none  of 
the  enemy  into  any  place  under  his  jurisdiction. 

3  258.  Per-  Those  who,  having  entered  the  enemy's  territories  during 
sons  de-  the  truce,  are  detained  there  by  sickness  or  any  other  unsur- 
tained  by  mountable  obstacle,  and  thus  Happen  to  remain  in  the  country 
a^ter  the  expiration  of  the  armistice,  may  in  strict  justice  be 
,  kept  prisoners :  it  is  an  accident  which  they  might  have  fore- 
after  the  ex-  seen,  and  to  which  they  have  of  their  own  accord  exposed 
piration  of  themselves ;  but  humanity  and  generosity  commonly  require 
the  truce.  ^^  ^gy  should  be  allowed  a  sufficient  term  for  their  de- 
parture. 

g  259.    Par-      If  the  articles  of  truce  contain  any  conditions  either  more 

ticuiar  con-  extensive  or  more  narrowly  restrictive  than  what  we  have 

rttotonMa  ^ere  ^a^  down,  *he  transaction  becomes  a  particular  conven- 

es*  tion.     It  is  obligatory  on  the  contracting  parties,  who  are 

bound  to  observe  what  they  have  promised  in  due  form :  and 

the    obligations   thence    resulting   constitute  a  conventional 

right,  the  detail  of  which  is  foreign  to  the  plan  of  this  work. 

§  260.   At       As  the  truce  only  suspends  the  effects  of  war  (§  233),  the 

the  expira-  moment  it  expires,  hostilities  may  be  renewed  without  any 

tion  of  the   fresn  declaration  of  war :  for  every  one  previously  knows  that 

war  Is  M!     fr°m  tliat  instant  tne  war  wiU  resume  its  course ;    and  the 

newed  with-  reasons  for  the  necessity  of  a  declaration  are  not  applicable 

out  any          to  this  Case  (§  51). 

fresh  decia-      jjut  a  truce  of  many  years  very  much  resembles  a  peace, 

ration.  an(j  onj^  ^g^g  from  ft  [n  leaving  the  subject  of  the  war  still 
undecided.  Now,  as  a  considerable  lapse  of  time  may  have 
effected  a  material  alteration  in  the  circumstances  and  dis- 
positions of  both  the  parties, — the  love  of  peace,  so  becoming 
in  sovereigns,  the  care  they  should  take  to  spare  their  sub- 
jects' blood,  and  even  that  of  her  enemies, — these  dispositions, 
I  say,  seem  to  require  that  princes  should  not  take  up  arms 
again  at  the  expiration  of  a  truce  in  which  all  military  pre- 
paratives had  been  totally  laid  aside  and  forgotten,  without 
making  some  declaration  which  may  invite  the  enemy  to  pre- 
vent the  effusion  of  blood.  The  Romans  have  given  us  an 
example  of  this  commendable  moderation.  They  had  only 
made  a  truce  with  the  city  of  Veii ;  and  the  enemy  even 
renewed  hostilities  before  the  stipulated  time  was  elapsed. 
Nevertheless,  at  the  expiration  of  the  term,  the  college  of  the 
feciales  gave  it  as  their  opinion  that  the  Romans  should  send 
to  make  a  formal  demand  of  satisfaction,  previous  to  their 
taking  up  arms  again.* 

§  261.  Ca-  The  capitulations  on  the  surrender  of  towns  are  among 
.ituiations;  ^  princ}paj  conventions  made  between  enemies  during  the 

whon/they  course  °f  war-     They  are  usually  settled  between  the  general 

may  be  con-  ' 

eluded.  *  Tit.  Liv.  lib.  ir.  cap.  30. 

528 


c»°°pK 


OP  VAKIOUS   CONVENTIONS,   ETC.  412 

of  the  besieging  army  and  the  governor  of  the  besieged  town, 
both  acting  in  virtue  of  the  authority  annexed  to  their  respec- 
tive posts  or  commissions. 

We  have  elsewhere  (Book  II.  Ch.  XIV.)  laid  down  the 
principles  of  that  authority  which  is  vested  in  the  subordinate 
powers,  together  with  general  rules  to  aid  in  forming  a  deci-  [  413  ] 
sion  respecting  it.  All  this  has  recently  been  recapitulated 
in  a  few  words,  and  particularly  applied  to  generals  and  other 
military  commanders  in  chief  (§  237).  Since  the  general  of 
an  army,  and  the  governor  of  a  town,  must  naturally  be 
invested  with  all  the  powers  necessary  for  the  exercise  of  their 
respective  functions,  we  have  a  right  to  presume  that  they 
possess  those  powe^sj  and  that  of  concluding  a  capitulation 
is  certainly  one  or  tlie  number,  especially  when  they  cannot 
wait  for  the  sovereign's  order.  A  treaty  made  by  them  on 
that  subject  is  therefore  valid,  and  binds  the  sovereigns  in 
whose  name  and  by  whose  authority  the  respective  com- 
manders have  acted. 

But  let  it  be  observed,  that,  if  those  officers  do  not  mean  I  262. 
to  exceed  their  powers,  they  should  scrupulously  confine Clau8es 
themselves  within  the  limits  of  their  functions,  and  forbear  to  ^°^m 
meddle  with  things  which  have  not  been  committed  to  their 
charge.  In  the  attack  and  the  defence,  in  the  capture  or  the 
surrender  of  a  town,  the  possession  alone  is  the  point  in  ques- 
tion, and  not  the  property  and  right :  the  fate  of  the  garrison 
is  also  involved  in  the  transaction.  Accordingly,  the  com- 
manders may  come  to  an  agreement  respecting  the  manner 
in  which  the  capitulating  town  shall  be  possessed :  the  besieg- 
ing general  may  promise  that  the  inhabitants  shall  be  spared, 
and  permitted  to  enjoy  their  religion,  franchises,  and  privi- 
leges :  and,  as  to  the  garrison,  he  may  allow  them  to  march 
out  with  their  arms  and  baggage,  with  all  the  honours  of 
war, — to  be  escorted  and  conducted  to  a  place  of  safety,  &c. 
The  governor  of  the  town  may  deliver  it  up  at  discretion,  if 
reduced  to  that  extremity  by  the  situation  of  affairs  :  he  may 
surrender  himself  and  his  garrison  prisoners  of  war,  or  engage, 
that,  for  a  stipulated  time,  or  even  to  the  end  of  the  war,  they 
shall  not  carry  arms  against  the  same  enemy,  or  against  his 
allies  :  and  the  governor's  promise  is  valid  and  obligatory  on 
all  under  his  command,  who  are  bound  to  obey  him  while  he 
keeps  within  the  limits  of  his  functions  (§  23). 

But,  should  the  besieging  general  take  on  him  to  promise 
that  his  sovereign  shall  never  annex  the  conquered  town  to 
his  own  dominions,  or  shall,  after  a  certain  time,  be  obliged 
to  restore  it,  he  would  exceed  the  bounds  of  his  authority, 
in  entering  into  a  contract  respecting  matters  which  are  not 
intrusted  to  his  management.  And  the  like  may  be  said  of 
a  governor  who  in  the  capitulation  should  proceed  to  such 
lengths  as  for  ever  to  alienate  the  town  which  he  commands, 
and  to  deprive  his  sovereign  of  the  right  to  retake  it, — « 

67  2  U  529 


413  OF   VAKIOUS   CONVENTIONS,    ETC. 

BOOK  m.    who  should  promise  that  his  garrison  shall  never  carry  arms, 
jgAp.  xvr.  not  even  -m  another  war.     His  functions  do  not  give  him  so 
extensive  a  power.     If,  therefore,  in  the  conferences  for  a 
capitulation,  either  of  the  hostile  commanders  should  insist 
on  conditions  which  the  other   does   not  think  himself  em- 
powered to  grant,  they  have  still  one  expedient  left,  which  is, 
to  agree  to  an  armistice,  during  which  every  thing  shall  con- 
[  414  ]  tinue  in  its  present  state,  until  they  have  received  orders  from 

higher  authority. 

§  263.  Ob-  At  the  beginning  of  this  chapter  we  have  given  the  reasons 
servanco  of  wny  we  thought  it  unnecessary  to  prove  in  this  place  that  all 
tfons^and  *nese  conventions  made  during  the  course  of  the  war,  are  to 
its  utility,  he  inviolably  adhered  to.  We  shall  therefore  only  observe, 
with  respect  to  capitulations  in  particular,  that,  as  it  is  unjust 
and  scandalous  to  violate  them,  so  the  consequences  of  such 
an  act  of  perfidy  often  prove  detrimental  to  the  party  who 
has  been  guilty  of  it.  What  confidence  can  thenceforward 
be  placed  in  him  ?  The  towns  which  he  attacks  will  endure 
the  most  dreadful  extremities,  rather  than  place  any  depend- 
ence on  his  word.  He  strengthens  his  enemies  by  compelling 
them  to  make  a  desperate  defence  ;  and  every  siege  that  he 
is  obliged  to  undertake  will  become  terrible.  On  the  con- 
trary, fidelity  attracts  confidence  and  affection ;  it  facilitates 
enterprises,  removes  obstacles,  and  paves  the  way  to  glorious 
successes.  Of  this,  history  furnishes  us  a  fine  example  in 
the  conduct  of  George  Baste,  general  of  the  imperialists  in 
1602,  against  Battory  and  the  Turks.  The  insurgents  of 
Battory's  party  having  gained  possession  of  Bistrith,  other- 
wise called  Nissa,  Baste  recovered  the  town  by  a  capitulation, 
which  in  his  absence  was  violated  by  some  German  soldiers : 
but,  being  informed  of  the  transaction  on  his  return,  he  imme 
diately  hanged  up  all  the  soldiers  concerned,  and  out  of  his 
own  purse  paid  the  inhabitants  all  the  damages  they  had  sus- 
tained. This  action  had  so  powerful  an  influence  on  the 
minds  of  the  rebels,  that  they  all  submitted  to  the  emperor, 
without  demanding  any  other  surety  than  the  word  of  General 
Baste.* 

?  264.    Pro-     Individuals,  whether  belonging  to  the   army  or   not,  who 
mises  made  happen  singly  to  fall  in  with  the  enemy,  are,  by  the  urgent 
to  the  one-   necess^y  of  the  circumstance,  left  to  their  own  discretion,  and 
dividual.     maji  so  far  as  concerns  their  own  persons,  do  every  thing 
which  a  commander  might  do  with  respect  to  himself  and  the 
troops  under  his  command.     If,  therefore,  in  consequence  of 
the  situation  in  which  they  are  involved,  they  make  any  pro- 
mise, such  promise  (provided  it  do  not  extend  to  matters  which 
can  never  lie  within  the  sphere  of  a  private  individual)  is  valid 
and  obligatory,  as  being  made  with  competent  powers.     For, 
when  a  subject  can  neither  receive  his  sovereign's  orders  nor 

*  SvOlj's  MtsmoiM,  by  M.  de  1'Eclmse,  voL  iv.  p.  179. 


OF  VARIOUS   CONVENTIONS,    ETC. 


414 


enjoy  his  protection,  he  assumes  his  natural  rights,  and  is  to    BOOK  m. 
provide  for  his  own  safety  by  any  just  and  honourable  means  CHAP-  XY1' 
in  his  power.  (184)     Hence,  if  that  individual  has  promised 
a  sum  for  his  ransom,  the  sovereign,  so  far  from  having  a 
power  to  discharge  him  from  his  promise,  should  oblige  him 
to  fulfil  it.     The  good  of  the  state  requires  that  faith  should 
be  kept  on  such  occasions,  and  that  subjects  should  have  this 
mode  of  saving  their  lives  or  recovering  their  liberty.  (185) 

Thus,  a  prisoner  who  is  released  on  his  parole,  is  bound  to  [  415  ] 
observe  it  with  scrupulous  punctuality ;  nor  has  the  sovereign 
a  right  to  oppose  such  observance  of  his  engagement :  for, 
had  not  the  prisoner  thus  given  his  parole,  he  would  not  have 
been  released. 

Thus,  also,  the  country  people,  the  inhabitants  of  villages 
or   defenceless   towns,  are  bound  to  pay  the  contributions 


(184)  In  general,  all  contracts  in  fa- 
vour of  alien  enemies  are,  in  Great 
Britain,  void,  both  at  law  and  in  equity ; 
(  Williamson  v.  Patterson,  7  Taunton's 
Rep.  439,  1  J.  B.  Moore,  333,  S.  C.j 
2  Ves.  &  B.  332;  ante,  321,  n.  (a),  ); 
unless  the  enemy  come  into  this  coun- 
try sub  salvo  conductu,  or  live  here  by 
the  king's  license;  (Cowp.  163;  6  Term 
Rep.  23;  2  Ves.  &  Beam.  332.)  And 
a  bill  drawn  abroad  by  an  alien  enemy 
on  a  British  subject  here,  and  endorsed 
during  war  to  a  British  subject  volun- 
tarily resident  in  the  hostile  country, 
cannot  bo  enforced  by  the  latter  after 
peace  has  been  restored,  because  it  was 
illegal  in  its  concoction  ;  ( Williamson  v. 
Patterson,  ubi  supra;  3  Bos.  &  Pul. 
113 ;  3  Maule  &  Sel.  533.)  But,  upon 
the  principle  above  laid  down  by  Vat- 
tel,  it  was  decided  that  where  two 
British  subjects  were  declared  prisoners 
in  France,  and  one  of  them  drew  a  bill 
in  favour  of  the  other  on  a  third  British 
subject,  resident  in  England,  and  such 
payee  endorsed  the  same  in  France  to 
an  alien  enemy — it  was  held  that  the 
transaction  was  legal,  and  that  the 
alien's  right  of  action  was  only  sus- 
pended during  the  war;  and  that,  on 
the  return  of  peace,  he  might  recover 
the  amount  from  the  acceptor;  for, 
otherwise,  such  persons  would  sustain 
great  privations  during  their  detention : 
and,  for  the  same  reason,  it  is  no  ob- 
jection to  an  action  on  such  bill,  that 
it  is  brought  as  to  part  in  trust  for  an 
alien  enemy.  Antoine  v.  Moorshead,  6 
Taunt.  237,  447,  1  Marsh.  Rep.  558,  S. 
C.  Danbitg  v.  Moorshead,  6  Taunt.  332. 
—0. 


(185)  See  the  same  principle  and 
reasoning,  ante,  g  174,  p.  371-2.  This 
doctrine,  as  to  ransom,  and  ransom-bills, 
is  recognised  as  part  of  the  law  of  na- 
tions, in  4  Bla.  Com.  67;  1  Chitty's 
Com.  L.,  32,  428.  But  the  ransoming 
of  any  ships,  or  merchandise  on  board 
the  same,  and  taken  by  an  enemy  of 
Great  Britain,  is  absolutely  prohibited 
by  the  English  statutes,  (22  Geo.  3,  c. 
25;  43  Geo.  3,  c.  150;  45  Geo.  3,  c. 
72 ;)  except  in  cases  of  extreme  neces- 
sity, continuing  to  be  allowed  by  the 
Court  of  Admiralty;  and  all  contracts 
for  ransom,  contrary  to  those  statutes, 
are  declared  void,  and  subjected  to  a 
penalty  of  £500.  See  Marshall  on  In- 
surances, 431.  These  ransom  acts  are 
to  be  considered  as  remedial  laws,  and 
must  be  construed  liberally  to  meet  the 
mischief.  Havelock  v.  Rockwood,  8  Term 
Rep.  277 :  Anthon  v.  Fisher,  2  Dougl. 
649,  n. ;  Woodward  v.  Larkins,  3  Esp. 
R.  266.  And  see  decisions,  Corme  v. 
Blackburne,  2  Dougl.  641;  Webb  v. 
Brooke,  3  Taunt.  6 ;  Teats  v.  Hall,  and 
Kelly  v.  Grant,  1  Term  Rep.  73,  76. 
And  where  the  master  of  a  British  ship, 
captured  by  an  American,  induced  the 
latter  to  release  the  vessel,  on  the  for- 
mer drawing  a  bill  on  England  for 
£1000,  by  way  of  ransom,  and  the  pay- 
ment of  which  he  countermanded  in 
time,  he  was  even  allowed  to  recover 
from  his  owners  compensation,  in  the 
nature  of  salvage,  for  his  services — 
morally  speaking,  constituting  a  per- 
fidious breach  of  faith.  Ship  London, 
2  Dodson's  Rep.  74. — C. 


415  OF   SAFE-CONDUCTS 

BOOK  m.   which  they  have  promised  in  order  to  save  themselves  from 

CHAP-XVI- pillage.  (186) 

Nay,  more,  a  subject  would  even  have  a  right  to  renounce 
his  country,  if  the  enemy,  being  master  of  his  person,  refused 
to  spare  his  life  on  any  other  condition:  for,  when  once  the 
society  to  which  he  belongs  is  unable  to  protect  and  defend 
him,  he  resumes  his  natural  rights.  And  besides,  should  he 
obstinately  refuse  compliance,  what  advantage  would  the 
state  derive  from  his  death  ?  Undoubtedly,  while  any  hope 
remains,  while  we  have  yet  any  means  of  serving  our  country, 
it  is  our  duty  to  expose  ourselves  and  to  brave  every  danger 
for  her  sake.  I  here  suppose  that  we  have  no  alternative  but 
that  of  renouncing  our  country,  or  perishing  without  any  ad- 
vantage to  her.  If  by  our  death  we  can  serve  her,  it  is  noble 
to  imitate  the  heroic  generosity  of  the  Decii.  But  an  engage- 
ment to  serve  against  our  country,  were  it  the  only  means  of 
saving  our  life,  is  dishonourable ;  and  a  man  of  spirit  would 
submit  to  a  thousand  deaths,  rather  than  make  so  disgraceful 
a  promise. 

If  a  soldier,  meeting  an  enemy  in  a  by-place,  makes  him 
prisoner,  but  promises  him  his  life  or  liberty  on  condition  of 
his  paying  a  certain  ransom,  this  agreement  is  to  be  respected 
by  the  superiors :  for,  it  does  not  appear  that  the  soldier, 
left  entirely  to  himself  on  that  occasion,  has  in  any  particular 
exceeded  his  powers.  He  might,  on  the  other  hand,  have 
thought  it  imprudent  to  attack  that  enemy,  and,  under  that 
idea,  have  suffered  him  to  escape.  Under  the  direction  of  his 
superiors,  he  is  bound  to  obey :  when  alone,  he  is  left  to  his 
own  discretion.  Procopius  relates  the  adventure  of  two  sol- 
diers, the  one  a  Goth  and  the  other  a  Roman,  who,  being 
fallen  together  into  a  pit,  mutually  promised  each  other  that 
their  lives  should  be  spared :  and  this  agreement  was  approved 
by  the  Goths.* 


[  416  ]  CHAP.  XVII. 

CHAP.  XYH.     OF   SAFE-CONDUCTS  AND    PASSPORTS, — WITH   QUESTIONS   ON 
THE   KANSOM   OF   PRISONERS    OF  WAR.  (187) 

§  265.  Na-  SAFE-CONDUCTS  and  passports  are  a  kind  of  privilege 
ture  of  safe-  insuring  safety  to  persons  in  passing  and  repassing,  or  to  cer- 
and^ass  *a*n  things  during  their  conveyance  from  one  place  to  another. 

port*. 

(186)  Same  point,  ante,  403,  in  note.  (187)   As   to   these,   and    Meditorra- 

— C.  nean  passes   and  licenses    in   general, 

*  Hist.  Goth.  lib.  ii.  cap.  i.  quoted  by  see  1  Chitty's  Commercial  Law,  492 — 

Puffendorf,  book  viii.  chap.  vii.  14.  513. — C. 
532 


AND    PASSPORTS,    ETC.  416 

From  the  usage  and  genius  of  the  (French]  language,  it  ap-    BOOK  m. 
pears  that  the  term  "passport"  is  used,  on  ordinary  occasions,  CIIAP-  xvn- 
when  speaking  of  persons  who  lie  under  no  particular  excep- 
tion as  to  passing  and  repassing  in  safety,  and  to  whom  it  is 
only  granted  for  greater  security,  and  in  order  to  prevent  all 
debate,  or  to  exempt  them  from  some  general  prohibition. 
A  safe-conduct  is  given  to  those  who  otherwise  could  not  safely 
pass  through  the  places  where  he  who  grants  it  is  master, — 
as,  for  instance,  to  a  person  charged  with  some  misdemeanour, 
or  to  an  enemy.     It  is  of  the  latter  that  we  are  here  to  treat. 

All  safe-conducts,  like  every  other  act  of  supreme  com-  §  266.  From 
mand,  emanate  from  the  sovereign  authority  :  but  the  prince  wha* au- 
may  delegate  to  his  officers  the  power  of  granting  safe-con-  ^nate*167 
ducts ;  and  they  are  invested  with  that  power  either  by  an 
express  commission,  or  by  a  natural  consequence  of  the  na- 
ture of  their  functions.     A  general  of  an  army,  from  the  very 
nature  of  his  post,  can  grant  safe-conducts :  and,  as  they  are 
derived,  though  mediately,  from  the  sovereign  authority,  the 
other  generals  or  officers  of  the  same  prince  are  bound  to 
respect  them. 

The  person  named  in  the  safe-conduct  cannot  transfer  his  §  267.   Not 
privilege  to  another :  for  he  does  not  know  whether  it  be  a  transferable 
matter  of  indifference  to  the  grantor  of  the  safe-conduct  that from  one 
another  person  should  use  it  in  his  stead :  and,  so  far  from  an^tiTer.0 
presuming  that  to  be  the  case,  he  is  even  bound  to  presume 
the  contrary,  on  account  of  the  abuses  which  might  thence 
result ;  and  he  cannot  assume  to  himself  any  further  privilege 
than  was  intended  for  him.     If  the  safe-conduct  is  granted, 
not  for  persons,  but  for  certain  effects,  those  effects  may  be 
removed  by  others  besides  the  owner.     The  choice  of  those 
who  remove  them  is  indifferent,  provided  there  do  not  lie 
against  them  any  personal  exception  sufficient  to  render  them 
objects  of  just  suspicion  in  the  eye  of  him  who  grants  the 
safe-conduct,  or  to  exclude  them  from  the  privilege  of  enter- 
ing his  territories. 

He  who  promises  security  by  a  safe-conduct,  promises  to  $  268.    Ex- 
afford  it  wherever  he  has  the  command, — not  only  in  his  own  tent  of  the 
territories,  but  likewise  in  every  place  where   any  of  his  prom!sed  * 
troops  may  happen  to  be :  and  he  is  bound,  not  only  to  for- soc 
bear  violating  that  security  either  by  himself  or  his  people, 
but  also  to  protect  and  defend  the  person  to  whom  he  has  [  417  ] 
promised  it,  to  punish  any  of  his  subjects  who  have  offered 
him  violence,  and  oblige  them  to  make  good  the  damage.* 

*  At  the  famous  interview  at  Pe-  and  negotiated  their  defection  while  he 
ronne,  Charles  duke  of  Burgundy,  ex-  was  at  Peronne,  Charles  would  have 
asperated  to  find  that  Louis  XI.  had  been  justifiable  in  disregarding  a  safe- 
engaged  the  people  of  Liege  to  take  up  conduct  of  which  an  improper  use  had 
arms  against  him,  paid  no  respect  fo  been  made.  But  the  French  monarch 
the  safe-conduct  which  he  had  granted  had  despatched  agents  to  Ghent  for  that 
to  that  prince.  If  Louis  had  plotted  purpose,  before  there  was  any  question 
2c2  533 


417  OF   SAFE-CONDUCTS 


BOOK   III. 
CHAP.   XVII. 


As  the  right  arising  from  a  safe-conduct  proceeds  entirely 
from  the  will  of  him  who  grants  it,  that  will  is  the  standard 
extent  of  the  right  is  to  be  measured  ;  and  the 


u-eo 

the  right  de-  w^  *s  discoverable  in  the  object  for  which  the  safe-conduct 
rived  from  was  granted.  Consequently,  a  person  who  has  barely  ob- 
a  safo-cou-  tained  permission  to  go  away,  does  not  thence  derive  a  right 
duct.  ^0  come  back  again  ;  and  a  safe-conduct,  granted  for  the 

simple  passage  through  a  country,  does  not  entitle  the  bearer 
to  repass  through  it  on  his  return.  When  the  safe-conduct 
is  granted  for  a  particular  business,  it  must  continue  in  force 
until  that  business  is  concluded,  and  the  person  has  had  time 
to  depart:  if  it  is  specified  to  be  granted  for  a  journey,  it 
will  also  serve  for  the  person's  return,  since  both  passage  and 
return  are  included  in  a  journey.  As  this  privilege  consists 
in  the  liberty  of  going  and  coming  in  safety,  it  differs  from  a 
permission  to  settle  in  any  particular  place,  and  consequently 
cannot  give  a  right  to  stop  anywhere  for  a  length  of  time, 
unless  on  some  special  business,  in  consideration  of  which 
the  safe-conduct  was  asked  and  granted. 

g  270.  Whe-     A  safe-conduct  given  to  a  traveller,  naturally  includes  his 

theritin-    baggage,  or  his  clothes,  and  other  things  necessary  for  his 

g^and3    j°urney>  w^n  even  one  or  two  domestics,  or  more,  according 

domestics,    to  the  rank  of  the  person.     But,  in  all  these  respects,  as  well 

as  in  the  others  which  we  have  just  noticed  above,  the  safest 

mode,  especially  when  we  have  to  do  with  enemies  or  other 

suspected  persons,  is,  to  specify  and  distinctly  enumerate  the 

particulars,  in  order  to  obviate  every  difficulty.    Accordingly, 

such  is  the  practice  which  at  present  prevails  ;  and,  in  grant- 

ing safe-conducts,  it  is  the  custom  expressly  to  include  the 

baggage  and  domestics. 

g  271.  Safe-  Though  a  permission  to  settle  anywhere,  granted  to  the 
conduct  father  of  a  family,  naturally  includes  his  wife  and  children, 
granted  to  it  is  otherwise  with  a  safe-conduct;  because  it  seldom  hap- 
does  notTn-  Pens  *na*  a  man  se^les  in  a  place  without  having  his  family 
elude  his  fa-  with  him;  whereas,  on  a  journey,  it  is  more  usual  to  travel 
nuly.  without  them. 

g  272.  Safe-     A  safe-conduct,  granted  to  a  person  for  himself  and  his 

conduct       retinue,  cannot  give  him  a  right  of  bringing  with  him  persons 

SlV6\'totiu~  Jus^y  suspected  by  the  state,  or  who  have  been  banished,  or 

one  and  his7  nave  fled  from  the  country  on  account  of  any  crime  ;  nor  can 

retinue.       it  serve  as  a  protection  to  such  men  :  for,  the  sovereign  who 

grants  a  safe-conduct  in  those  general  terms,  does  not  sup- 

pose that  it  will  be  presumptuously  abused  for  the  purpose  of 

[  418  ]  bringing  persons  into  his  territories  who  have  been  guilty  of 

crimes,  or  have  particularly  offended  him. 
g  273.  Term      A  safe-conduct,  given  for  a  stated  term,  expires  at  the  end 

of  the  safe-  _  _  _  _ 
conduct  of  ^Q  meeting  at  Peronne  ;  and  Charles,  pected  intelligence,  committed  a  fla- 

in  the  transports  of  blind  resentment,     grant  breach  of  the  law  of  nations. 

excited  by  the  disagreeable  and  uuex- 
534 


AND   PASSPORTS,   ETC.  418 

of  the  term  specified  therein ;  and  the  bearer,  if  he  does  not   BOOK  m. 
retire  before  that  time,  may  be  arrested,  and  even  punished,  CHAP-  xyn- 
according  to  circumstances,  especially  if  he  has  given  room 
for  suspicion  by  an  affected  delay. 

But,  if  forcibly  detained,  as  by  sickness,  so  as  to  be  un- §274.  A  per- 
able  to  depart  in  time,  a  proper  respite  should  be  allowed son  forcibly 
him;  for  a  promise  of  security  has  been  made  to  him:  and,  ^dtife^" 
though  it  was  made  only  for  a  limited  time,  it  is  not  by  any  term> 
fault  of  his  own  that  he  has  been  prevented  from  departing 
within  the  term.    The  case  is  different  from  that  of  an  enemy 
coming  into  our  country  during  a  truce :  to  the  latter  we 
have  made  no  particular  promise :  he,  at  his  own  peril,  takes 
advantage  of  a  general  liberty  allowed  by  the  suspension  of 
hostilities.     All  we  have  promised  to  the  enemy  is  to  forbear 
hostilities  for  a  certain  time ;  and,  at  the  expiration  of  that 
term,  it  is  a  matter  of  importance  to  us  that  we  be  at  liberty 
to  let  the  war  freely  take  its  course,  without  being  impeded 
by  a  variety  of  excuses  and  pretexts. 

The  safe-conduct  does  not  expire  at  the  decease  or  depo-  §  275.   The 
sition  of  him  who  granted  it ;   for  it  was  given  in  virtue  of  safe-conduct 
the  sovereign  authority,  which  never  dies,  and  whose  efficacy^3™*^*" 
exists  independent  of  the  person  intrusted  with  the  exercise  death  of  him 
of  it.     It  is  with  this  act  as  with  other  ordinances  of  the  who  gave  it. 
public  power ;  their  validity  or  duration  does  not  depend  on 
the  life  of  him  who  enacted  them,  unless,  by  their  very  na- 
ture, or  by  express  declaration,  they  are  personally  confined 
to  him. 

The  successor,  nevertheless,  may  revoke  a  safe-conduct,  if  2  276.  How 
he  has  good  reasons  for  the  revocation.  Even  he  who  has lt  ™aj be  re" 
granted  it  may,  in  like  case,  revoke  it :  nor  is  he  always  v° 
obliged  to  make  known  his  reasons.  Every  privilege,  when 
it  becomes  detrimental  to  the  state,  may  be  revoked, — a  gra- 
tuitous privilege,  purely  and  simply, — a  purchased  privilege, 
on  giving  an  indemnification  to  the  parties  concerned.  Sup- 
pose a  prince  or  his  general  is  preparing  for  a  secret  expe- 
dition,— must  he  suffer  any  person,  under  cover  of  a  safe- 
conduct,  antecedently  obtained,  to  come  and  pry  into  his 
preparatives,  and  give  the  enemy  intelligence  of  them  ?  But 
a  safe-conduct  is  not  to  be  converted  into  a  snare :  if  it  be 
revoked,  the  bearer  must  be  allowed  time  and  liberty  to 
depart  in  safety ._  If  he,  like  any  other  traveller,  be  detained 
for  some  time,  in  order  to  prevent  his  carrying  intelligence 
to  the  enemy,  no  ill-treatment  is  to  be  offered  him ;  nor  is 
he  to  be  kept  longer  than  while  the  reasons  for  his  detainder 
subsist. 

If  a  safe-conduct  contains  this  clause — "  For  such  time  as  $  277.  Safe- 
we  shall  think  fit,"  it  gives  only  a  precarious  right,  and  isconduct 
revocable  every  moment :  but,  until  it  has  been  expressly  J1^Jhe/br 
revoked,  it  remains  valid.     It  expires  on  the  death  of  him LTLeL 
who  gave  it,  who,  from  that  moment,  ceases  to  will  the  con- 

535 


419  OF   SAFE   CONDUCTS 

BOOK  in.   tinuation  of  the  privilege.     But  it  must  always  be  under- 
CHAP.  XYII.  8too  j  tkat>    wken   a   safe-conduct   expires  in  this   manner, 


we  shall       the  bearer  is  to  be  allowed  a  proper  time  for  his  safe  de- 
tunk^      parture. 

§  278.  Con-     After  having  discussed  the  right  of  making  prisoners  of 

Mn""^  the  war'  —  *ke  obligation  of  the  qaptor  to  release  them  at  the 

ransfm  of    peace,  by  exchange  or  ransom,'  —  and  that  of  their  sovereign 

prisoners,     to  obtain  their  liberty,  —  it  remains  to  consider  the  nature 

of  those  conventions  whose  object  is  the  deliverance  of  these 

unfortunate  sufferers.      If  the  belligerent  sovereigns  have 

agreed  on  a  cartel  for  the  exchange  or  ransom  of  prisoners, 

they  are  bound  to  observe  it  with  equal  fidelity  as  any  other 

convention.     But  if  (as  was  frequently  the  practice  in  former 

times)  the  state  leaves  to  each  prisoner,  at  least  during  the 

continuance  of  the  war,  the  care  of  redeeming  himself  —  such 

private  conventions  present  a  number  of  questions,  of  which 

we  shall  only  touch  on  the  principal  ones. 

§  279.   The      He  who  has  acquired  a  lawful  right  to  demand  a  ransom  from 

right  of  de-  j^g  prisoner,  may  transfer  his  right  to  a  third  person.     This 

ransom  may  was  Practised  in  the  last  ages.     It  was  frequent  for  military 

be  trans-      men  to  resign  their  prisoners,  and  transfer  all  the  rights  they 

ferred.         had  over  them  into  other  hands.     But  as  the  person  who 

takes  a  prisoner  is  bound  to  treat  him  with  justice  and  hu- 

manity (§  150),  he  must  not,  if  he  wishes  that  his  conduct 

should  be  free  from  censure,  transfer  his  right,  in  an  unli- 

mited manner,  to  one  who  might  make  an  improper  use  of  it  : 

when  he  has  agreed  with  his  prisoner  concerning  the  price 

of  his  ransom,  he  may  transfer  to  whom  he  pleases  the  right 

to  demand  the  stipulated  sum. 

?  280.  What      When  once  the  agreement  is  made  with  a  prisoner  for  the 

tJufconvem   P"ce  °^  ^is  ransom,  it  becomes  a  perfect  contract,  and  can- 

tion  made     n°t  ^e  rescinded  under  pretence  that  the  prisoner  is  disco- 

for  the  rate  vered  to  be  richer  than  was  imagined  :  for  it  is  by  no  means 

of  the  ran-  necessary  that  the  rate  should  be  proportioned  to  the  wealth 

B0m<  of  the  prisoner,  since  that  is  not  the  scale  by  which  we  mea- 

sure the  right  to  detain  a  prisoner  of  war  (§§  148,   153). 

But  it  is  natural  to  proportion  the  price  of  the  ransom  to 

the  prisoner's  rank  in  the  hostile  army,  because  the  liberty 

of  an  officer  of  distinction  is  of  greater  consequence  than 

that  of  a  private  soldier  or  an  inferior  officer.     If  the  pri- 

soner has  not  only  concealed,  but  disguised  his  rank,  it  is  a 

fraud  on  his  part,  which  gives  the  captor  a  right  to  annul  the 

compact. 

\  281.  A  pri-     If  a  prisoner,  having  agreed  on  the  price  of  his  ransom, 

soner  dying  ^jeg  before  payment,  it  is  asked  whether  the  stipulated  sum 

menteofSn-be  due»  and  whether  the  heirs  are  bound  to  pay  it?     They 

aom.  undoubtedly  are,  if  the  prisoner  died  in  the  possession  of  his 

liberty  :  for,  from  the  moment  of  his  release,  in  consideration 

of  which  he  had  promised  a  sum,  that  sum  becomes  due,  and 

does  not  at  all  belong  to  his  heirs.     But,  if  he  had  not  yet 

536 


AND   PASSPORTS,    ETC.  420 

obtained  his  liberty,  the  price  which  was  to  have  been  paid  CHAP.  m. 
for  it  is  not  a  debt  on  him  or  his  heirs,  unless  he  had  made  CHAP-  XTIV 
his  agreement  in  a  different  manner ;  and  he  is  not  reputed 
to  have  received  his  liberty  until  the  moment  when  he  is  per- 
fectly free  to  depart  at  pleasure, — when  neither  the  person 
who  held  him  prisoner,  nor  that  person's  sovereign,  opposes 
his  release  and  departure. 

If  he  has  only  been  permitted  to  take  a  journey,  for  the 
purpose  of  prevailing  on  his  friends  or  his  sovereign  to  fur- 
nish him  with  the  means  of  ransoming  himself,  and  dies  be- 
fore he  is  possessed  of  his  full  liberty,  before  he  is  finally 
discharged  from  his  parole,  nothing  is  due  for  his  ransom. 

If,  after  having  agreed  on  the  price,  he  is  detained  in  pri- 
son till  the  time  of  payment,  and  there  dies  in  the  interim, 
his  heirs  are  not  bound  to  pay  the  ransom — such  an  agree- 
ment being,  on  the  part  of  the  person  who  held  him  prisoner, 
no  more  than  a  promise  of  giving  him  his  liberty  on  the 
actual  payment  of  a  certain  sum.  A  promise  of  buying  and 
selling  does  not  bind  the  supposed  purchaser  to  pay  the  price 
of  the  article  in  question,  if  it  happens  to  perish  before  the 
completion  of  the  purchase.  But  if  the  contract  of  sale  be 
perfect,  the  purchaser  must  pay  the  price  of  the  thing  sold, 
though  it  should  happen  to  perish  before  delivery,  provided 
there  was  no  fault  or  delay  on  the  part  of  the  vendor.  For 
this  reason,  if  the  prisoner  -has  absolutely  concluded  the 
agreement  for  his  ransom,  acknowledging  himself,  from  that 
moment,  debtor  for  the  stipulated  sum, — and  is,  nevertheless,  * 
still  detained,  no  longer  indeed  as  a  prisoner,  but  a  surety 
for  the  payment, — the  price  of  the  ransom  is  due,  notwith- 
standing the  circumstance  of  his  dying  in  the  interim. 

If  the  agreement  says  that  the  ransom  shall  be  paid  on  a 
certain  day,  and  the  prisoner  happens  to  die  before  that  day, 
the  heirs  are  bound  to  pay  the  sum  agreed  on :  for  the  ran- 
som was  due  ;  and  the  appointed  day  was  assigned  merely  as 
the  term  of  payment. 

From  a  rigid  application  of  the  same  principles,  it  follows  ?  282.  Pn- 
that  a  prisoner,  who  has  been  released  on  condition  of  pro- soner  re- 
curing  the  release  of  another,  should  return  to  prison,  in  ^*sjdti°°  of 
case  the  latter  happens  to  die  before  he  has  been  able  to^cni-ing0 
procure  him  his  liberty.     But  certainly  such  an  unfortunate  the  release 
case  is  entitled  to  lenity ;  and  equity  seems  to  require  that of  another, 
this  prisoner  should  be  allowed  to  continue  in  the  enjoyment 
of  that  liberty  which  has  been  granted  to  him,  provided  he 
pays  a  fair  equivalent  for  it,  since  he  is  now  unable  to  pur- 
chase it  precisely  at  the  price  agreed  on. 

If  a  prisoner,  who  has  been  fully  set  at  liberty,  after  hav-  §  283.  Pri- 
ing  promised  but  not  paid  his  ransom,  happens  to  be  taken  a soner  ™- 
second  time,  it  is  evident  that,  without  being  exempted  from  !ake,n  befor? 

,1  /»!•/»  *  he  has  paid 

the  payment  of  his  former  ransom,  he  will  have  to  pay  a  his  fom;,r 
second,  if  he  wishes  to  recover  his  liberty.  ransom. 

68  537 


420  OF   SAFE-CONDUCTS,   ETC. 

BOOK  in.        On  the  other  hand,  though  the  prisoner  has  agreed  for  the 

CHAP,  xvn.  prjce  Of  nig  ransom,  if?  before  the  execution  of  the  com- 

§  284.    Pri-  pact? — before  he  is  set  at  liberty  in  virtue  of  it, — he  be  re- 

cued'before  ta^en  an^  delivered  by  his  own  party,  he  owes  nothing.     I 

he  has  re-    here  evidently  suppose  that  the  contract  for  his  ransom  was 

ceived  his  li-  not  completed,  and  that  the  prisoner  had  not  acknowledged 

berty.          himself  debtor  for  the  sum  agreed  on.     The  person  who  held 

[  421  ]  him  prisoner  had,  as  it  were,  only  made  him  a  promise  of 

selling,  and  he  had  promised  to  purchase  :  but  the  purchase 

and  sale  had  not  actually  passed  into  effect;  the  property 

was  not  actually  transferred. 

§  285.  Who-      The  property  of  a  prisoner's  effects  is  not  vested  in  the 
thfauHwliifih  caPtor'  ex66?*  so  far  as  ne  seizes  on  those  effects  at  the  time 
a  prisoner*5  °^  ^s  capture.     Of  this  there  is  no  doubt,  in  these  modern 
has  found     times,  when  prisoners  of  war  are  not  reduced  to  slavery, 
means  to      And,  even  by  the  law  of  nature,  the  property  of  a  slave's 
conceal,  be-  g00(js  (joes  no^  without  some  other  reason,  pass  to  the  mas- 
im'  ter  of  the  slave.     There  is  nothing  in  the  nature  of  slavery 
which  can   of  itself  produce  that   effect.      Though  a  man 
obtains   certain  rights  over  the  liberty  of  another,  does  it 
thence  follow  that  he  shall  have  a  right  over  his  property 
also  ?     When,   therefore,  the  enemy  has  not  plundered  his 
prisoner,  or  when  the  latter   has  found  means  to  conceal 
something  from  the  captor's  search,  whatever  he  has  thus 
saved  still  continues  to  be  his  own  property,  and  he  may  em- 
ploy it  towards  the  payment  of  his  ransom.     At  present, 
even  the  plundering  of  prisoners  is  not  always  practised : 
the  greedy  soldier  sometimes  proceeds  to  such  lengths ;  but 
an  officer  would  think  it  an  indelible  stain  on  his  character, 
to  have  deprived  them  of  the  smallest  article.     A  party  of 
private  French  troopers,  who  had  captured  a  British  general 
at  the  battle  of  Rocoux,  claimed  no  right  to  anything  be- 
longing to  their  prisoner,  except  his  arms  alone. 

g  286.  Hos-      The  death  of  the  prisoner  extinguishes  the  captor's  right. 

tages  given  "Wherefore,  if  any  person  is  given  as  a  hostage  in  order  to 

leL^ofT    Procure  a  prisoner's  enlargement,  he  ought  to  be  released  the 

prisoner.      moment  the  prisoner  dies ;  and,  on  the  other  hand,  if  the 

hostage  dies,  his  death  does  not  reinstate  the  prisoner  in  the 

possession  of  his  liberty.     The  reverse  of  this  is  true,  if  the 

one,  instead  of  being  simply  a  hostage  for  the  other,  had 

been  substituted  in  his  stead. 

538 


OF   CIVIL  WAR.  421 


BOOK.  m. 
CHAP.  xvm. 


CHAP.  XVIII. 

OF  CIVIL  LAW. 

IT  is  a  question  very  much  debated,  whether  a  sovereign  §  287.  Foun- 
is  bound  to  observe  the  common  laws  of  war  towards  rebel-  Cation  of  the 
lious  subjects  who  have  openly  taken  up  arms  against  him  ?  JjJJJJ18*'" 
A  flatterer,  or  a  prince  of  a  cruel  and  arbitrary  disposition,  against  the 
will  immediately  pronounce  that  the  laws  of  war  were  not  rebels, 
made  for  rebels,  for  whom  no  punishment  can  be  too  severe.  [  422  ] 
Let  us  proceed  more  soberly,  and  reason  from  the  incon- 
testable principles  above  laid  down.     In  order  clearly  to  dis- 
cover what  conduct  the  sovereign  ought  to  pursue  towards 
revolted  subjects,  we  must,  in  the  first  place,  recollect  that 
all  the  sovereign's  rights  are  derived  from  those  of  the  state 
or  of  civil  society,  from  the  trust  reposed  in  him,  from  the 
obligation  he  lies  under  of  watching  over  the  welfare  of  the 
nation,  of  procuring  her  greatest  happiness,  of  maintaining 
order,  justice,   and  peace  within   her   boundaries  (Book  I. 
Chap.  IV).     Secondly,  we  must  distinguish  the  nature  and 
degree  of  the  different  disorders  which  may  disturb  the  state, 
and  oblige  the  sovereign  to  take  up  arms,  or  substitute  forci- 
ble measures  instead  of  the  milder  influence  of  authority. 

The  name  of  rebels  is  given  to  all  subjects  who  unjustly  g  288.  Who 
take  up  arms  against  the  ruler  of  the  society,  whether  their  ^e  rebels, 
view  be  to  deprive  him  of  the  supreme  authority,  or  to  resist 
his  commands  in  some  particular  instance,  and  to  impose  con 
ditions  on  him. 

A  popular  commotion  is  a  concourse  of  people  who  as-  2  289.  Popu- 
semble  in  a  tumultuous  manner,  and  refuse  to  listen  to  the  ]*r  comm°- 
voice  of  their  superiors,  whether  the  design  of  the  assembled  ^io™8^ 
multitude  be   levelled  against  the  superiors  themselves,   or  duion?  " 
only  against  some  private  individuals.     Violent  commotions 
of  this  kind  take  place  when  the  people  think  themselves 
aggrieved ;  and  there  is  no  order  of  men  who  so  frequently 
give  rise  to  them  as  the  tax-gatherers.     If  the  rage  of  the 
malecontents  be  particularly  levelled  at  the  magistrates,  or 
others  vested  with  the  public  authority,  and  they  proceed  to 
a  formal  disobedience  or  acts  of  open  violence,  this  is  called 
a  sedition.     When  the  evil  spreads, — when  it  infects  the  ma- 
jority of  the  inhabitants  of  a  city  or  province,  and  gains 
such  strength  that  even  the  sovereign  himself  is  no  longer 
obeyed, — it  is  usual  more  particularly  to  distinguish  such  a 
disorder  by  the  name  of  insurrection. 

All  these  violences  disturb  the  public  order,  and  are  state  g  290.  HOW 
crimes,   even  when  arising  from  just   causes  of  complaint.  ^ s0™- 

539 


422  OF   CIVIL   WAR. 

BOOK  m.  For  violent  measures  are  forbidden  in  civil  society :  the  in- 
CHAP.  xvin.  jure(j  individuals  should  apply  to  the  magistrate  for  redress  ;^ 
reign  is  to  and  if  they  do  not  obtain  justice  from  that  quarter,  they  may 
suppress  jay  their  complaints  at  the  foot  of  the  throne.  Every  citi- 
em>  zen  should  even  patiently  endure  evils,  which  are  not  insup- 
portable, rather  than  disturb  t]ie  public  peace.  A  denial  of 
justice  on  the  part  of  the  sovereign,  or  affected  delays,  can 
alone  excuse  the  furious  transports  of  a  people  whose  pa- 
tience has  been  exhausted, — and  even  justify  them,  if  the 
evils  be  intolerable,  and  the  oppression  great  and  manifest. 
But  what  conduct  shall  the  sovereign  observe  towards  the  in- 
surgents ?  I  answer,  in  general, — such  conduct  as  shall  at 
the  same  time  be  the  most  consonant  to  justice,  and  the  most 
salutary  to  the  state.  Although  it  be  his  duty  to  repress 
those  who  unnecessarily  disturb  the  public  peace,  he  is  bound 
to  show  clemency  towards  unfortunate  persons,  to  whom  just 
causes  of  complaint  have  been  given,  and  whose  sole  crime 
consists  in  the  attempt  to  do  themselves  justice :  they  have 
been  deficient  in  patience  rather  than  fidelity.  Subjects  who 
[  423  ]  rise  against  their  prince  without  cause  deserve  severe  punish- 
ment :  yet,  even  in  this  case,  on  account  of  the  number  of 
the  delinquents,  clemency  becomes  a  duty  in  the  sovereign. 
Shall  he  depopulate  a  city,  or  desolate  a  province,  in  order 
to  punish  her  rebellion  ?  Any  punishment,  however  just  in 
itself,  which  embraces  too  great  a  number  of  persons,  becomes 
an  act  of  downright  cruelty.  Had  the  insurrection  of  the 
Netherlands  against  Spain  been  totally  unwarrantable,  univer- 
sal detestation  would  still  attend  the  memory  of  the  duke  of 
Alva,  who  made  it  his  boast  that  he  had  caused  twenty  thou- 
sand heads  to  be  struck  off  by  the  hands  of  the  common  exe- 
cutioner. Let  not  his  sanguinary  imitators  expect  to  justify 
their  enormities  by  the  plea  of  necessity.  What  prince  ever 
suffered  more  outrageous  indignities  from  his  subjects  than 
Henry  the  Great,  of  France  ?  Yet,  his  victories  were  ever 
accompanied  by  a  uniform  clemency;  and  that  excellent 
prince  at  length  obtained  the  success  he  deserved  :  he  gained 
a  nation  of  faithful  subjects ;  whereas  the  duke  of  Alva 
caused  his  master  to  lose  the  United  Provinces.  Crimes,  in 
which  a  number  of  persons  are  involved,  are  to  be  punished 
by  penalties  which  shall  equally  fall  on  all  the  parties  con- 
cerned :  the  sovereign  may  deprive  a  town  of  her  privileges, 
at  least,  till  she  has  fully  acknowledged  her  fault :  as  to  cor- 
poral punishment,  let  that  be  reserved  for  the  authors  of  the 
disturbances, — for  those  incendiaries  who  incite  the  people 
to  revolt.  But  tyrants  alone  will  treat,  as  seditious,  those 
brave  and  resolute  citizens  who  exhort  the  people  to  preserve 
themselves  from  oppression,  and  to  vindicate  their  rights  and 
privileges :  a  good  prince  will  commend  such  virtuous  pa- 
triots, provided  their  zeal  be  tempered  with  moderation  and 
prudence.  If  he  has  justice  and  his  duty  at  heart, — if  he 

540 


OF   CIVIL   WAR.  423 

aspires  to  that  immortal  and  unsullied  glory  of  being  the   »OOK  m. 
father  of  his  people,  let  him  mistrust  the  selfish  suggestions CHAP-  XVIir_- 
of  that  minister  who  represents  to  him  as  rebels  all  those 
citizens  who  do  not  stretch  out  their  necks  to  the  yoke  of 
slavery, — who  refuse  tamely  to  crouch  under  the  rod  of  arbi- 
trary power. 

In  many  cases,  the  safest,  and  at  the  same  time  the  most  §  291.  He  is 
just  method  of  appeasing  seditions,  is  to  give  the  people  satis- bound  to 
faction.  And  if  there  existed  no  reasons  to  justify  the  insur-  JJ^Jg*J 
rection  (a  circumstance  which,  perhaps,  never  happens),  even  has  made  to 
in  such  case,  it  becomes  necessary,  as  we  have  above  observed,  the  rebels, 
to  grant  an  amnesty  where  the  offenders  are  numerous.  When 
the  amnesty  is  once  published  and  accepted,  all  the  past  must 
be  buried  in  oblivion;  nor  must  any  one  be  called  to  account 
for  what  has  been  done  during  the  disturbances :  and,  in 
general,  the  sovereign,  whose  word  ought  ever  to  be  sacred, 
is  bound  to  the  faithful  observance  of  every  promise  he  has 
made,  even  to  rebels, — I  mean,  to  such  of  his  subjects  as 
have  revolted  without  reason  or  necessity.  If  his  promises 
are  not  inviolable,  the  rebels  will  have  no  security  in  treating 
with  him :  when  they  have  once  drawn  the  sword,  they  must  [  424  ] 
throw  away  the  scabbard,  as  one  of  the  ancients  expresses  it ; 
and  the  prince,  destitute  of  the  more  gentle  and  salutary 
means  of  appeasing  the  revolt,  will  have  no  other  remaining 
expedient  than  that  of  utterly  exterminating  the  insurgents. 
These  will  become  formidable  through  despair ;  compassion 
will  bestow  succours  on  them ;  their  party  will  increase,  and 
the  state  will  be  in  danger.  What  would  have  become  of 
France,  if  the  leaguers  had  thought  it  unsafe  to  rely  on  the 
promises  of  Henry  the  Great?  The  same  reasons  which 
should  render  the  faith  of  promises  inviolable  and  sacred  be- 
tween individual  and  individual,  between  sovereign  and  sove- 
reign, between  enemy  and  enemy  (Book  II.  §§  163,  218,  &c., 
and  Book  III.  §  174),  subsist  in  all  their  force  between  the 
sovereign  and  his  insurgent  or  rebellious  subjects.  However, 
if  they  have  extorted  from  him  odious  conditions,  which  are 
inimical  to  the  happiness  of  the  nation,  or  the  welfare  of  the 
state, — as  he  has  no  right  to  do  or  grant  any  thing  contrary 
to  that  grand  rule  of  his  conduct,  which  is  at  the  same  time 
the  measure  of  his  power,  he  may  justly  revoke  any  perni- 
cious concessions  which  he  has  been  obliged  to  make,  pro- 
vided the  revocation  be  sanctioned  by  the  consent  of  the 
nation,  whose  opinion  he  must  take  on  the  subject,  in  the 
manner  and  forms  pointed  out  to  him  by  the  constitution  of 
the  state.  But  this  remedy  is  to  be  used  with  great  reserve, 
and  only  in  matters  of  high  importance,  lest  the  faith  of  pro- 
mises should  be  weakened  and  brought  into  disrepute.* 

*  An  instance  of  this  occurs  in  the    insurrection    at    Madrid,  in   1766.    At 
transactions  which  took  place  after  the    the  requisition  of  the  cortes,  the  king 
2V  541 


424  OF   CIVIL   WAR. 

BOOK  HI.        When  a  party  is  formed  in  a  state,  who  no  longer  obey  the 
IAP.  xvm.  S0vereign,  and  are  possessed  of  sufficient  strength  to  oppose 


2  292.  civil  hjm) — or  wnen)  in  a  republic,  the  nation  is  divided  into  two 
opposite  factions,  and  both  sides  take  up  arms, — this  is  called 
a  civil  war.  Some  writers  confine  this  term  to  a  just  insur- 
rection of  the  subjects  against  their  sovereign,  to  distinguish 
that  lawful  resistance  from  rebellion,  which  is  an  open  and 
unjust  resistance.  But  what  appellation  will  they  give  to  a 
war  which  arises  in  a  republic  torn  by  two  factions, — or  in  a 
monarchy,  between  two  competitors  for  the  crown  ?  Custom 
appropriates  the  term  of  "  civil  war"  to  every  war  between 
the  members  of  one  and  the  same  political  society.  If  it  be 
between  part  of  the  citizens  on  the  one  side,  and  the  sove- 
reign, with  those  who  continue  in  obedience  to  him,  on  the 
other, — provided  the  malecontents  have  any  reason  for  taking 
up  arms,  nothing  further  is  required  to  entitle  such  disturb- 
ance to  the  name  of  civil  war,  and  not  that  of  rebellion.  This 
latter  term  is  applied  only  to  such  an  insurrection  against 
lawful  authority  as  is  void  of  all  appearance  of  justice.  The 
[  425  ]  sovereign,  indeed,  never  fails  to  bestow  the  appellation  of 
rebels  on  all  such  of  his  subjects  as  openly  resist  him :  but, 
when  the  latter  have  acquired  sufficient  strength  to  give  him 
effectual  opposition,  and  to  oblige  him  to  carry  on  the  war 
against  them  according  to  the  established  rules,  he  must  ne- 
cessarily submit  to  the  use  of  the  term  "  civil  war." 
g  293.  A  It  is  foreign  to  our  purpose  in  this  place  to  weigh  the 
civil  war  reasons  which  may  authorize  and  justify  a  civil  war :  we  have 
fwo^nde  e^sewnere  treated  of  the  cases  wherein  subjects  may  resist 
plndent"  *ne  sovereign  (Book  I.  Chap.  IV).  Setting,  therefore,  the 
parties.  justice  of  the  cause  wholly  out  of  the  question,  it  only  remains 
for  us  to  consider  the  maxims  which  ought  to  be  observed  in 
a  civil  war,  and  to  examine  whether  the  sovereign  in  parti- 
cular is,  on  such  an  occasion,  bound  to  conform  to  the  esta- 
blished laws  of  war. 

A  civil  war  breaks  the  bands  of  society  and  government, 
or,  at  least,  suspends  their  force  and  effect :  it  produces  in  the 
nation  two  independent  parties,  who  consider  each  other  as 
enemies,  and  acknowledge  no  common  judge.  Those  two 
parties,  therefore,  must  necessarily  be  considered  as  thence- 
forward constituting,  at  least  for  a  time,  two  separate  bodies, 
two  distinct  societies.  Though  one  of  the  parties  may  have 
been  to  blame  in  breaking  the  unity  of  the  state  and  resisting 
the  lawful  authority,  they  are  not  the  less  divided  in  fact. 
Besides,  who  shall  judge  them  ?  who  shall  pronounce  on  which 
side  the  right  or  the  wrong  lies?  On  earth  they  have  no 
common  superior.  They  stand  therefore  in  precisely  the 
same  predicament  as  two  nations,  who  engage  in  a  contest, 

revoked  the  concessions  which  he  had    populace,  but  he  suffered  the  amnesty 
been  obliged  to  make  to  the  insurgent    to  remain  in  force. 
MB 


OF   CIVIL   WAK.  425 

and,  being  unable  to  come  to  an  agreement,  have  recourse  to    BOOK  m. 
arms.  CHAP'  XYIIT- 

This  being  the  case,  it  is  very  evident  that  the  common  I  294.  They 
laws  of  war, — those  maxims  of  humanity,  moderation,  and are  to  ob- 
honour,  which  we  have  already  detailed  in  the  course  of  this  *^m*e 
work, — ought  to  be  observed  by  both  parties  in  every  civil  iaws  Of  war. 
war.  For  the  same  reasons  which  render  the  observance  of 
those  maxims  a  matter  of  obligation  between  state  and  state, 
it  becomes  equally  and  even  more  necessary  in  the  unhappy 
circumstance  of  two  incensed  parties  lacerating  their  common 
country.  Should  the  sovereign  conceive  he  has  a  right  to 
hang  up  his  prisoners  as  rebels,  the  opposite  party  will  make 
reprisals  :* — if  he  does  not  religiously  observe  the  capitula- 
tions, and  all  other  conventions  made  with  his  enemies,  they 
will  no  longer  rely  on  his  word : — should  he  burn  and  ravage, 
they  will  follow  his  example ;  the  war  will  become  cruel,  hor- 
rible, and  every  day  more  destructive  to  the  nation.  The  [  426  ] 
duke  de  Montpensier's  infamous  and  barbarous  excesses 
against  the  reformed  party  in  France  are  too  well  known: 
the  men  were  delivered  up  to  the  executioner,  and  the  women 
to  the  brutality  of  the  soldiers.  What  was  the  consequence  ? 
the  Protestants  became  exasperated;  they  took  vengeance 
of  such  inhuman  practices ;  and  the  war,  before  sufficiently 
cruel  as  a  civil  and  religious  war,  became  more  bloody  and 
destructive.  Who  could  without  horror  read  of  the  savage 
cruelties  committed  by  the  Baron  Des  Adrets  ?  By  turns  a 
Catholic  and  a  Protestant,  he  distinguished  himself  by  his 
barbarity  on  both  sides.  At  length  it  became  necessary  to 
relinquish  those  pretensions  to  judicial  authority  over  men 
who  proved  themselves  capable  of  supporting  their  cause  by 
force  of  arms,  and  to  treat  them,  not  as  criminals  but  as 
enemies.  Even  the  troops  have  often  refused  to  serve  in 
a  war  wherein  the  prince  exposed  them  to  cruel  reprisals. 
Officers  who  had  the  highest  sense  of  honour,  though  ready  to 
shed  their  blood  in  the  field  of  battle  for  his  service,  have  not 
thought  it  any  part  of  their  duty  to  run  the  hazard  of  an 
ignominious  death.  Whenever,  therefore,  a  numerous  body 
of  men  think  they  have  a  right  to  resist  the  sovereign,  and 
feel  themselves  in  a  condition  to  appeal  to  the  sword,  the  war 
ought  to  be  carried  on  by  the  contending  parties  in  the 


*  The  prince  of  Conde,  commander  The  duko  of  Alva  made  it  a  practice 

of  Louis  XIII.'s  farces  against  the  re-  to  condemn  to  death  every  prisoner  he 

formed  party,  having  hanged  sixty-four  took  from  the  confederates  in  the  Ne- 

officers  whom   he  had   made   prisoners  therlands.     They,  on  their  part,  retali- 

during  the  civil  war,  the  Protestants  re-  ated,  and  at  length   compelled  him  to 

solved  upon  retaliation ;  and  the   duke  respect  the  law  of  nations  and  the  rules 

de  Rohan,  who  commanded  them,  caused  of  war  in  his   conduct  toward  them, 

an  equal  number  of  Catholic  officers  to  Grotius,  Ann.  lib.  ii. 
be  hanged.    See  Memoires  de  Rohan. 


426  OF   CIVIL   WAR. 

BOOK  in.    manner  as  by  two  different  nations  :  and  they  ought  to  leave 
cHA.p-_xym.  Open  tjie  same  means  for  preventing  its  being  carried  to  out- 
rageous extremities,  and  for  the  restoration  of  peace. 

When  the  sovereign  has  subdued  the  opposite  party,  and 
reduced  them  to  submit  and  sue  for  peace,  he  may  except 
from  the  amnesty  the  authors  of  the  disturbances, — the  heads 
of  the  party:  he  may  bring -them  to  a  legal  trial,  and  punish 
them,  if  they  be  found  guilty.  He  may  act  in  this  manner 
particularly  on  occasion  of  those  disturbances  in  which  the 
interests  of  the  people  are  not  so  much  the  object  in  view  as 
the  private  aims  of  some  powerful  individuals,  and  which 
rather  deserve  the  appellation  of  revolt  than  of  civil  ivar. 
Such  was  the  case  of  the  unfortunate  duke  of  Montmorency : — 
he  took  up  arms  against  the  king,  in  support  of  the  duke  of 
Orleans ;  and,  being  defeated  and  taken  prisoner  at  the  bat- 
tle of  Castelnaudari,  he  lost  his  life  on  a  scaffold,  by  the  sen- 
tence of  the  parliament  of  Toulouse.  If  he  was  generally 
pitied  by  all  men  of  worth  and  sentiment,  it  was  because  they 
viewed  him  rather  as  an  opponent  to  the  exorbitant  power  of 
an  imperious  minister,  than  as  a  rebel  against  his  sovereign, 
— and  that  his  heroic  virtues  seemed  to  warrant  the  purity 
of  his  intentions.* 

\  295.   The      When  subjects  take  up  arms  without  ceasing  to  acknow- 
effects  of      ledge  the  sovereign,  and  only  for  the  purpose  of  obtaining  a 
tiTuished13  re(^ress  °f  their  grievances,  there  are  two  reasons  for  observ- 
according  to  ing  the  common  laws  of  war  towards  them  : — First,  an  appre- 
cases.          hension  lest  the  civil  war  should  become  more  cruel  and  de- 
structive by  the  insurgents  making  retaliation,  which,  as  we 
[  427  ]  have  already  observed,  they  will  not  fail  to  do,  in  return  for 
the  severities  exercised  by  the  sovereign.     2.  The  danger 
of  committing  great  injustice  by  hastily  punishing  those  who 
are  accounted  rebels.     The  flames  of  discord  and  civil  war 
are  not  favourable  to  the  proceedings  of  pure  and  sacred  jus- 
tice :  more  quiet  times  are  to  be  waited  for.     It  will  be  wise 
in  the  prince  to  keep  his  prisoners,  till,  having  restored  tran- 
quillity, he  is  able  to  bring  them  to  a  legal  trial. 

As  to  the  other  effects  which  the  law  of  nations  attributes 
to  public  war,  see  Chap.  XII.  of  this  Book,  and  particularly 
the  acquisition  of  things  taken  in  war, — subjects  who  take  up 
arms  against  their  sovereign  without  ceasing  to  acknowledge 
him,  cannot  lay  claim  to  the  benefit  of  those  effects.  The 
booty  alone,  the  movable  property  carried  off  by  the  enemy, 
is  considered  as  lost  to  the  owners ;  but  this  is  only  on  ac- 
count of  the  difficulty  of  recognising  it,  and  the  numberless 
inconveniences  which  would  arise  from  the  attempt  to  recover 
it.  All  this  is  usually  settled  in  the  edict  of  pacification,  or 
the  act  of  amnesty. 

*  See  the  historians  of  the  reign  of  Louis  XIIL 


OF   CIVIL   WAR.  427 

But,  when  a  nation  becomes  divided  into  two  parties  ab-  BOOK  m. 
feolutely  independent,  and  no  longer  acknowledging  a  common  CHAP-  *TIIL 
superior,  the  state  is  dissolved,  and  the  war  between  the  two 
parties  stands  on  the  same  ground,  in  every  respect,  as  a 
public  war  between  two  different  nations.  Whether  a  republic 
be  split  into  two  factions,  each  maintaining  that  it  alone  con- 
stitutes the  body  of  the  state, — or  a  kingdom  be  divided 
between  two  competitors  for  the  crown, — the  nation  is  severed 
into  two  parties,  who  will  mutually  term  each  other  rebels. 
Thus  there  exist  in  the  state  two  separate  bodies,  who  pre- 
tend to  absolute  independence,  and  between  whom  there  is 
no  judge  (§  293).  They  decide  their  quarrel  by  arms,  as  two 
different  nations  would  do.  The  obligation  to  observe  the 
common  laws  of  war  towards  each  other  is  therefore  absolute, 
— indispensably  binding  on  both  parties,  and  the  same  which 
the  law  of  nature  imposes  on  all  nations  in  transactions  be- 
tween state  and  state. 

Foreign  nations  are  not  to  interfere  in  the  internal  govern-  $  296.  Con. 
ment  of  an  independent  state.     (Book  II.  §  54,  &c.)     It  be- duct  to  be 
longs  not  to  them  to  judge  between  the  citizens  whom  discord  J0brsjvne^y 
has  roused  to  arms,  nor  between  the  prince  and  his  subjects :  t^naf0  " 
both  parties  are  equally  foreigners  to  them,  and  equally  in- 
dependent of  their  authority.     They  may,  however,  interpose 
their  good  offices  for  the  restoration  of  peace ;  and  this  the 
law  of  nature  prescibes  to  them.     (Book  II.  Ch.  I.)     But,  if 
their  mediation  proves  fruitless,  such  of  them  as  are  not 
bound  by  any  treaty,  may,  with  the  view  of  regulating  their 
own  conduct,  take  the  merits  of  the  cause  into  consideration, 
and  assist  the  party  which  they  shall  judge  to  have  right  on  its 
side,  in  case  that  party  requests  their  assistance  or  accepts  the 
offer  of  it :  they  are  equally  at  liberty,  I  say,  to  do  this,  as  [  428  ] 
to  espouse  the  quarrel  of  one  nation  embarking  in  a  war 
against  another.     As  to  the  allies  of  the  state  thus  distracted 
by  civil  war,  they  will  find  a  rule  for  their  conduct  in  the  na- 
ture of  their  engagements,  combined  with  the  existing  cir- 
cumstances.    Of  this  we  have  treated  elsewhere.     (See  Book 
II.  Chap.  XII.  and  particularly  §§  196  and  19T.) 


645 


BOOK  IV. 

OF  THE  RESTORATION  OF  PEACE;  AND  OF 
EMBASSIES. 


CHAP.  I. 

CHAP.   I. 


OF   PEACE,   AND   THE   OBLIGATION  TO   CULTIVATE   IT. 

g  1.  What  -t  EACE  is  the  reverse  of  war :  it  is  that  desirable  state 
peace  is.  in  which  every  one  quietly  enjoys  his  rights,  or,  if  contro- 
verted, amicably  discusses  them  by  force  of  argument.  Hobbs 
has  had  the  boldness  to  assert,  that  war  is  the  natural  state 
of  man.  But  if,  by  "the  natural  state  of  man,"  we  under- 
stand (as  reason  requires  that  we  should)  that  state  to  which 
he  is  destined  and  called  by  his  nature,  peace  should  rather  be 
termed  his  natural  state.  For,  it  is  the  part  of  a  rational 
being  to  terminate  his  differences  by  rational  methods ; 
whereas,  it  is  the  characteristic  of  the  brute  creation  to  de- 
cide theirs  by  force.*  Man,  as  we  have  already  observed 
(Prelim.  §  10),  alone  and  destitute  of  succours,  would  neces- 
sarily be  a  very  wretched  creature.  He  stands  in  need  of 
the  intercourse  and  assistance  of  his  species,  in  order  to  enjoy 
the  sweets  of  life,  to  develope  his  faculties,  and  live  in  a  man- 
ner suitable  to  his  nature.  Now,  it  is  in  peace  alone  that  all 
these  advantages  are  to  be  found :  it  is  in  peace  that  men 
respect,  assist,  and  love  each  other :  nor  would  they  ever  de- 
[  430  ]  part  from  that  happy  state,  if  they  were  not  hurried  on  by 
the  impetuosity  of  their  passions,  and  blinded  by  the  gross 
deceptions  of  self-love.  What  little  we  have  said  of  the 
effects  will  be  sufficient  to  give  some  idea  of  its  various  calami- 
ties ;  and  it  is  an  unfortunate  circumstance  for  the  human 
race,  that  the  injustice  of  unprincipled  men  should  so  often 
render  it  inevitable. 

$  2.  Obiiga-     Nations  who  are  really  impressed  with  sentiments  of  hu- 

tion  of  cuiti-  manity, — who    seriously  attend  to  their  duty,  and   are  ac- 

»tmg  it      quainted  with  their  true  and  substantial  interests, — will  never 

*  Nam  cum  sint  duo  genera  decer-     endum  est  ad  posterius,  si  uti  non  licet 
tandi,  unum  per  disceptationem,  alte-    superiore.     Cicero,  de  Offic.  lib.  i.  cap. 
rum  per  vim, — cumquo  illud  proprium    11. 
Bit  hominis,  hoc  belluarum, — confugi- 
546 


OF  PEACE,  AND  THE  OBLIGATION  TO  CULTIVATE  IT.          430 

seek  to  promote  their  own  advantage  at  the  expense  and  de-  BOOK  IT. 
triment  of  other  nations:  however  intent  they  may  be  on  CHAP'  r' 
their  own  happiness,  they  will  ever  be  careful  to  combine  it 
with  that  of  others,  and  with  justice  and  equity.  Thus  dis- 
posed, they  will  necessarily  cultivate  peace.  If  they  do  not 
live  together  in  peace,  how  can  they  perform  those  mutual 
and  sacred  duties  which  nature  enjoins  them?  And  this 
state  is  found  to  be  no  less  necessary  to  their  happiness  than 
to  the  discharge  of  their  duties.  Thus,  the  law  of  nature 
every  way  obliges  them  to  seek  and  cultivate  peace.  That 
divine  law  has  no  other  end  in  view  than  the  welfare  of  man- 
kind :  to  that  object  all  its  rules  and  all  its  precepts  tend : 
they  are  all  deducible  from  this  principle,  that  men  should 
seek  their  own  felicity ;  and  morality  is  no  more  than  the  art 
of  acquiring  happiness.  As  this  is  true  of  individuals,  it  is 
equally  so  of  nations,  as  must  appear  evident  to  any  one  who 
will  but  take  the  trouble  of  reflecting  on  what  we  have  said 
of  their  common  and  reciprocal  duties,  in  the  first  chapter  of 
the  second  book. 

This  obligation  of  cultivating  peace  binds  the  sovereign  by  §  3-  The  s°- 
a  double  tie.     He  owes  this  attention  to  his  people,  on  whom  vereisn's 
war  would  pour  a  torrent  of  evils ;  and  he  owes  it  in  the  °0  £ a  * 
most  strict  and  indispensable  manner,  since  it  is  solely  for  the 
advantage  and  welfare  of  the  nation  that  he  is  intrusted  with 
the  government.  (Book  I.  §  39.)     He  owes  the  same  attention 
to  foreign  nations,  whose  happiness  likewise  is  disturbed  by 
war.     The  nation's  duty  in  this  respect  has  been  shown  in 
the  preceding  chapter ;  and  the  sovereign,  being  invested  with 
the  public  authority,  is  at  the  same  time  charged  with  all  the 
duties  of  the  society,  or  body  of  the  nation.  (Book  I.  §  41.) 

The  nation  or  the  sovereign  ought  not  only  to  refrain,  on  ?  4.  Extent 
their  own  part,  from  disturbing  that  peace  which  is  so  salu- of  thls  duty> 
tary  to  mankind :  they  are,  moreover,  bound  to  promote  it  as 
far  as  lies  in  their  power, — to  prevent  others  from  breaking 
it  without  necessity,  and  to  inspire  them  with  the  love  of  jus- 
tice, equity,  and  public  tranquillity, — in  a  word,  with  the  love 
of  peace.  It  is  one  of  the  best  offices  a  sovereign  can  render 
to  nations,  and  to  the  whole  universe.  What  a  glorious  and 
amiable  character  is  that  of  peace-maker !  Were  a  powerful 
prince  thoroughly  acquainted  with  the  advantages  attending 
it, — were  he  to  conceive  what  pure  and  effulgent  glory  he 
may  derive  from  that  endearing  character,  together  with  the 
gratitude,  the  love,  the  veneration,  and  the  confidence  of  na- 
tions,— did  he  know  what  it  is  to  reign  over  the  hearts  of 
men, — he  would  wish  thus  to  become  the  benefactor,  the  [  431  ] 
friend,  the  father  of  mankind ;  and  in  being  so,  he  would  find 
infinitely  more  delight  than  in  the  most  splendid  conquests. 
Augustus,  shutting  the  temple  of  Janus,  giving  peace  to  the 
universe,  and  adjusting  the  disputes  of  kings  and  nations, — 

547 


431          OF  PEACE,  AND  THE  OBLIGATION  TO  CULTIVATE  IT. 

BOOK  iv.    Augustus,  at  that  moment,  appears  the  greatest  of  mortals, 
IAP'  r'  -and,  as  it  were,  a  god  upon  earth. 


g  5.  Of  the  But  those  disturbers  of  the  public  peace, — those  scourges 
oflie^ub  °f  the  earth>  w^°'  fired  kj  a  lawless  thirst  of  power,  or  ina- 
ne peace1  Pe^ed  by  the  pride  and  ferocity  of  their  disposition,  snatch  up 
arms  without  justice  or  reason,  and  sport  with  the  quiet  of 
mankind  and  the  blood  of  their  subjects, — those  monstrous 
heroes,  though  almost  deified  by  the  foolish  admiration  of  the 
vulgar,  are  in  effect  the  most  cruel  enemies  of  the  human 
race,  and  ought  to  be  treated  as  such.  Experience  shows 
what  a  train  of  calamities  war  entails  even  upon  nations  that 
are  not  immediately  engaged  in  it.  War  disturbs  commerce, 
destroys  the  subsistence  of  mankind,  raises  the  price  of  all  the 
most  necessary  articles,  spreads  just  alarms,  and  obliges  all 
nations  to  be  upon  their  guard,  and  to  keep  up  an  armed 
force.  He,  therefore,  who  without  just  cause  breaks  the  ge- 
neral peace,  unavoidably  does  an  injury  even  to  those  nations 
which  are  not  the  objects  of  his  arms ;  and  by  his  pernicious 
example  he  essentially  attacks  the  happiness  and  safety  of 
every  nation  upon  earth.  He  gives  them  a  right  to  join  in  a 
general  confederacy  for  the  purpose  of  repressing  and  chas- 
tising him,  and  depriving  him  of  a  power  which  he  so  enor- 
mously abuses.  What  evils  does  he  not  bring  on  his  own 
nation,  lavishing  her  blood  to  gratify  his  inordinate  passions, 
and  exposing  her  to  the  resentment  of  a  host  of  enemies ! 
A  famous  minister  of  the  last  century  has  justly  merited  the 
indignation  of  his  country,  by  involving  her  in  unjust  or  un- 
necessary wars.  If  by  his  abilities  and  indefatigable  appli- 
cation, he  procured  her  distinguished  successes  in  the  field  of 
battle,  he  drew  on  her,  at  least  for  a  time,  the  execration  of 
all  Europe. 

g  6.  How  The  love  of  peace  should  equally  prevent  us  from  embark- 
far  war  may  jng  jn  &  war  y^houfc  necessity,  and  from  persevering  in  it 
after  the  necessity  has  ceased  to  exist.  When  a  sovereign  has 
been  compelled  to  take  up  arms  for  just  and  important  rea- 
sons, he  may  carry  on  the  operations  of  war  till  he  has  at- 
tained its  lawful  end,  which  is,  to  procure  justice  and  safety. 
(Book  III.  §  28.) 

If  the  cause  be  dubious,  the  just  end  of  war  can  only  be  to 
bring  the  enemy  to  an  equitable  compromise  (Book  III.  §  38) ; 
and  consequently  the  war  must  not  be  continued  beyond  that 
point.  The  moment  our  enemy  proposes  or  consents  to  such 
compromise,  it  is  our  duty  to  desist  from  hostilities. 

But  if  we  have  to  do  with  a  perfidious  enemy,  it  would  be 
[  432  ]  imprudent  to  trust  either  his  words  or  his  oaths.  In  such 
case,  justice  allows  and  prudence  requires  that  we  should 
avail  ourselves  of  a  successful  war,  and  follow  up  our  advan- 
tages, till  we  have  humbled  a  dangerous  and  excessive  power, 
or  compelled  the  enemy  to  give  us  sufficient  security  for  the 
time  to  come. 

548 


OF   TREATIES   OF   PEACE.  432 

Finally,  if  the  enemy  obstinately  rejects  equitable  condi-    BOOK  iv. 
tions,  he  himself  forces  us  to  continue  our  progress  till  we.  ,CHAP-  T- 
have  obtained  a  complete  and  decisive  victory,  by  which  he 
is  absolutely  reduced  and  subjected.     The  use  to  be  made 
of  victory  has  been  shown  above.  (Book  III.  Chap.  VIII.  IX. 
XIII.) 

When  one  of  the  parties  is  reduced  to  sue  for  peace,  or  §  7.    Peace 
both  are  weary  of  the  war,  then  thoughts  of  an  accommoda- the  end  of 
tion  are  entertained,  and  the  conditions  are  agreed  on.    Thus  wa 
peace  steps  in  and  puts  a  period  to  the  war. 

The  general  and  necessary  effects  of  peace  are  the  reconci- 1  8.    Gene- 
liation  of  enemies  and  the  cessation  of  hostilities  on  both r^ effects 
sides.     It  restores  the  two  nations  to  their  natural  state.         °  peace- 


CHAP.  II.  CHAP,  n. 

TREATIES   OF   PEACE.  (188) 

WHEN  the  belligerent  powers  have  agreed  to  lay  down  g  9.  Defim- 
their  arms,  the  agreement  or  contract  in  which  they  stipulate tion  of  a 
the  conditions  of  peace,  and  regulate  the  manner  in  which  it tre8lty  of 
is  to  be  restored  and  supported,  is  called  the  treaty  of  peace. pec 

The  same  power  who  has  the  right  of  making  war,  of  de-  g  10.    By 
termining  on  it,  of  declaring  it,  and  of  directing  its  opera- whom  it 
tions,  has  naturally  that  likewise  of  making  and  concluding  may  be  con 
the  treaty  of  peace.  (189)     These  two  powers  are  connected c  u  e  ' 
together,  and  the  latter  naturally  follows  from  the  former.  If 
the  ruler  of  the  state  is  empowered  to  judge  of  the  causes  and 
reasons  for  which  war1  is  to  be  undertaken, — of  the  time  and 
circumstances  proper  for  commencing  it, — of  the  manner  in 
which  it  is  to  be  supported  and  carried  on, — it  is  therefore 
his  province  also  to  set  bounds  to  its  progress,  to  point  out 
the  time  when  it  shall  be  discontinued,  and  to  conclude  a  peace. 
But  this  power  does  not  necessarily  include  that  of  granting  or 
accepting  whatever  conditions  he  pleases,  with  a  view  to  peace. 
Though  the  state  has  intrusted  to  the  prudence  of  her  ruler 
the  general  care  of  determining  on  war  and  peace,  yet  she 
may  have  limited  his  power  in  many  particulars  by  the  funda- 
mental laws.     Thus,  Francis  the  First,  king  of  France,  had 
the  absolute  disposal  of  war  and  peace :  and  yet  the  assembly 
of  Cognac  declared  that  he  had  no  authority  to  alienate  any 

(188)  Upon  the  subject  of  treaties  in  are   collected  in     Chitt/s   Commercial 

general,  and  their  construction,  see  ante,  Law,  latter  part  of  vol.  2. — C. 

book  ii.   ch.  xii.  p.  192—274.     Whilst  (189)  Ante,  291-2 ;  and  see  Hoop,  1 

examining  the  sections  of  Vattel  rela-  Rob.  Rep.  196,  Id.;  1  Chitty's  Com.  L. 

tive  to  treaties,  it  will  be  found  advis-  378.— C. 
able  to  read  the  modern  treaties,  which 

549 


432  OF  TREATIES   OF  PEACE. 

BOOK  iv.    part  of  the  kingdom  by  a  treaty  of  peace.     (See  Book  I. 


A  nation  that  has  the  free  disposal  of  her  domestic  affairs, 
and  of  the  form  of  her  government,  may  intrust  a  single 
person,  or  an  assembly,  with  the  power  of  making  peace,  al- 
though she  has  not  given  them  that  of  making  war.  Of  this 
we  have  an  instance  in  Sweden,  where,  since  the  death  of 
[  433  ]  Charles  XII.,  the  king  cannot  declare  war  without  the  consent 
of  the  states  assembled  in  diet  ;  but  he  may  make  peace  in 
conjunction  with  the  senate.  It  is  less  dangerous  for  a  nation 
to  intrust  her  rulers  with  this  latter  power,  than  with  the 
former.  She  may  reasonably  expect  that  they  will  not  make 
peace  till  it  suits  with  the  interest  of  the  state.  But  their 
passions,  their  own  interest,  their  private  views,  too  often  in- 
fluence their  resolutions  where  there  is  question  of  undertaking 
a  war.  Besides,  it  must  be  a  very  disadvantageous  peace,  in- 
deed, that  is  not  preferable  to  war,  whereas,  on  the  other 
hand,  to  exchange  peace  for  war  is  always  very  hazardous. 

When  a  prince,  who  is  possessed  only  of  limited  authority, 
has  a  power  to  make  peace,  as  he  cannot  of  himself  grant 
whatever  conditions  he  pleases,  it  is  incumbent  on  those  who 
wish  to  treat  with  him  on  sure  grounds,  to  require  that  the 
treaty  of  peace  be  ratified  by  the  nation,  or  by  those  who 
are  empowered  to  perform  the  stipulations  contained  in  it.  If, 
for  instance,  any  potentate,  in  negotiating  a  treaty  of  peace 
with  Sweden,  requires  a  defensive  alliance  or  guarantee  as  the 
condition,  this  stipulation  will  not  be  valid,  unless  approved 
and  accepted  by  the  diet,  who  alone  have  the  power  of  carry- 
ing it  into  effect.  The  kings  of  England  are  authorized  to 
conclude  treaties  of  peace  and  alliance  ;  but  they  cannot,  by 
those  treaties,  alienate  any  of  the  possessions  of  the  crown 
without  the  consent  of  parliament.  Neither  can  they,  without 
the  concurrence  of  that  body,  raise  any  money  in  the  kingdom  ; 
wherefore,  whenever  they  conclude  any  subsidiary  treaty,  it  is 
their  constant  rule  to  lay  it  before  the  parliament,  in  order  that 
they  may  be  certain  of  the  concurrence  of  that  assembly  to 
enable  them  to  make  good  their  engagements.  When  the 
emperor  Charles  V.  required  of  Francis  the  First,  his  prisoner, 
such  conditions  as  that  king  could  not  grant  without  the  con- 
sent of  the  nation,  he  should  have  detained  him  till  the 
states-general  of  France  had  ratified  the  treaty  of  Madrid, 
and  Burgundy  had  acquiesced  in  it  :  thus  he  would  not  have 
lost  the  fruits  of  his  victory  by  an  oversight  which  appears 
very  surprising  in  a  prince  of  his  abilities. 

§11.  Alien-     We  shall  not  repeat  here  what  we  have  said  on  a  former 
ations  made  occasion  concerning  the  alienation  of  a  part  of  the  state 

(B°°k  L  §§  268'  &C')'  °F  °f  the  Wh°le  State'    (Ibi(L  §.§  68'  &C') 
We  shall  therefore  content  ourselves  with  observing,  that, 

in  case  of  a  pressing  necessity,  such  as  is  produced  by  the 
events  of  an  unfortunate  war,  the  alienations  made  by  the 

550 


OF   TREATIES   OF   PEACE.  433 

prince,  in  order  to  save  the  remainder  of  the  state,  are  consi-  BOOK  IT. 
dered  as  approved  and  ratified  by  the  mere  silence  of  the  na-  CHAP"  "• 
tion,  when  she  has  not,  in  the  form  of  her  government,  retained 
some  easy  and  ordinary  method  of  giving  her  express  con- 
sent, and  has  lodged  an  absolute  power  in  the  prince's  hands. 
The  states-general  are  abolished  in  France  by  disuse  and  by 
the  tacit  consent  of  the  nation.  Whenever,  therefore,  that 
kingdom  is  reduced  to  any  calamitous  exigency,  it  belongs  to 
the  king  alone  to  determine  by  what  sacrifices  he  may  pur-  [  434  ] 
chase  peace :  and  his  enemies  will  treat  with  him  on  a  sure 
footing.  It  would  be  a  vain  plea  on  the  part  of  the  people,  to 
say  that  it  was  only  through  fear  they  acquiesced  in  the  abo- 
lition of  the  states-general.  The  fact  is,  that  they  did  acqui- 
esce, and  thereby  suffered  the  king  to  acquire  all  the  powers 
necessary  for  contracting  with  foreign  states  in  the  name  of 
the  nation.  In  every  state  there  must  necessarily  be  some 
power  with  which  other  nations  may  treat  on  secure  grounds. 
A  certain  historian*  says,  that,  "  by  the  fundamental  laws, 
the  kings  of  France  cannot,  to  the  prejudice  of  their  suc- 
cessors, renounce  any  of  their  rights,  by  any  treaty,  whether 
voluntary  or  compulsory."  The  fundamental  laws  may  indeed 
withhold  from  the  king  the  power  of  alienating,  without  the 
nation's  consent,  what  belongs  to  the  state ;  but  they  cannot 
invalidate  an  alienation  or  renunciation  made  with  that  con- 
sent.f  And  if  the  nation  has  permitted  matters  to  proceed  to 
such  lengths  that  she  now  has  no  longer  any  means  of  ex- 
pressly declaring  her  consent,  her  silence  alone,  on  such  occa 
sions,  is  in  reality  a  tacit  consent.  Otherwise  there  would  be 
no  possibility  of  treating  on  sure  grounds  with  such  a  state ; 
and  her  pretending  thus  beforehand  to  invalidate  all  future 
treaties  would  be  an  infringement  of  the  law  of  nations, 
which  ordains  that  all  states  should  retain  the  means  of  treat- 
ing with  each  other  (Book  I.  §  262),  and  should  observe  their 
treaties.  (Book  II.  §§  163,  269,  &c.) 

It  is  to  be  observed,  however,  that  in  our  examination 
whether  the  consent  of  the  nation  be  requisite  for  alienating 
any  part  of  the  state,  we  mean  such  parts  as  are  still  in  the 
nation's  possession,  and  not  those  which  have  fallen  into  the 
enemy's  hands  during  the  course  of  the  war :  for,  as  these 
latter  are  no  longer  possessed  by  the  nation,  it  is  the  sovereign 

*  The  abbe  de  Choisi,  Hist,  de  Charles  national  approbation,  and  the  character 

V.  p.  492.  of  a  law  of  the  state.     The  cardinals 

f  The   renunciation   made   by    Anne  who  examined  this  affair  by  order  of 

of  Austria,  consort  of  Louis  the  Thir-  the  pope,  whom  Charles  II.  had   con- 

teenth,  was  good  and  valid,  because  it  suited,  paid  no  regard  to  Maria  The- 

was  confirmed  by  the  general  assembly  resa's  renunciation,  as  not  deeming  it 

of  the  cortes,  and  registered  in  all  the  of  sufficient  force  to  invalidate  the  laws 

offices.     The   case  was   otherwise  with  of  the   country,  and   to   supersede  tho 

that    made    by  Anna   Theresa,   which  established    custom. — Memoirs    of    M. 

was  not  sanctioned  by  those  formalities,  de    St.    Philippe,    vol.    i.   p.    29. — Ed. 

—consequently,  not  stamped  with  the  A.  D.  1797. 

551 


434  OF  TREATIES   OF   PEACE. 

BOOK  iv.  alone,  if  invested  with  the  full  and  absolute  administration  of 
CHAP-  "•  the  government,  and  with  the  power  of  making  war  and 
peace, — it  is  he  alone,  I  say,  who  is  to  judge  whether  it  be 
expedient  to  relinquish  those  parts  of  the  state,  or  to  continue 
the  war  for  the  recovery  of  them.  And  even  though  it  should 
be  pretended  that  he  cannot  by  his  own  single  authority  make 
any  valid  alienation  of  them, — he  has,  nevertheless,  according 
to  our  supposition,  that  is,  if  invested  with  full  and  absolute 
power, — he  has,  I  say,  a  right  to  promise  that  the  nation  shall 
never  again  take  up  arms  for  the  recovery  of  those  lands, 
towns,  or  provinces,  which  he  relinquishes :  and  this  suffices 
for  securing  the  quiet  possession  of  them  to  the  enemy  into 
[  435  ]  whose  hands  they  are  fallen. 

g  12.  How  The  necessity  of  making  peace  authorizes  the  sovereign  to 
the  sove-  dispose  of  the  property  of  individuals ;  and  the  eminent  do- 

main  gives  him  a  right  to  do  li  (Book  L  §  244)'     He  may 
even,  to  a  certain  degree,  dispose  of  their  persons,  by  virtue 

what  con-  of  the  power  which  he  has  over  all  his  subjects.  But  as  it  is 
cems  indi-  for  the  public  advantage  that  he  thus  disposes  of  them,  the 
viduais.  state  is  bound  to  indemnify  the  citizens  who  are  sufferers  by 

the  transaction.  (Ibid.) 

§  13.  Whe-  Every  impediment  by  which  the  prince  is  disabled  from 
ther  a  king,  administering  the  affairs  of  government,  undoubtedly  deprives 
bemg  a  pn-  ^m  Q£  ^e  power  of  making  peace.  Thus  a  king  cannot  make 

sonerofwar,  ,,*•  ,  i?          •         -^  I_M     •  e 

can  make  a  treaty  of  peace  during  his  minority,  or  while  in  a  state  of 
peace.  mental  derangement :  this  assertion  does  not  stand  in  need 
of  any  proof:  but  the  question  is,  whether  a  king  can  con- 
elude  a  peace  while  he  is  a  prisoner  of  war,  and  whether  the 
treaty  thus  made  be  valid  ?  Some  celebrated  authors*  here 
draw  a  distinction  between  a  monarch  whose  kingdom  is  pa- 
trimonial, and  another  who  has  only  the  usufructus  of  his  do- 
minions. We  think  we  have  overthrown  that  false  and  dan- 
gerous idea  of  a  patrimonial  kingdom  (Book  L  §§  68,  &c.), 
and  evidently  shown  that  the  notion  ought  not  to  be  extended 
beyond  the  bare  power  with  which  a  sovereign  is  sometimes 
intrusted,  of  nominating  his  successor,  of  appointing  a  new 
prince  to  rule  over  the  state,  and  dismembering  some  parts  of 
it,  if  he  thinks  it  expedient ; — the  whole,  however,  to  be  uni- 
formly done  for  the  good  of  the  nation,  and  with  a  view  to  her 
greater  advantage.  Every  legitimate  government,  whatever 
it  be,  is  established  solely  for  the  good  and  welfare  of  the 
state.  This  incontestable  principle  being  onee  laid  down,  the 
making  of  peace  is  no  longer  the  peculiar  province  of  the 
king;  it  belongs  to  the  nation.  Now  it  is  certain  that  a 
captive  prince  cannot  administer  the  government,  or  attend 
to  the  management  of  public  affairs.  How  shall  he  who  is 
not  free  command  a  nation  ?  How  can  he  govern  it  in  such 
manner  as  best  to  promote  the  advantage  of  the  people,  and 

*  See  Wolf.  Jus  Gent  2  .982. 
552 


OF   TREATIES   OF   PEACE.  435 

the  public  welfare?  He  does  not,  indeed,  forfeit  his  rights;  BCOK  IT. 
but  his  captivity  deprives  him  of  the  power  of  exercising  CEAP-  "-. 
them,  as  he  is  not  in  a  condition  to  direct  the  use  of  them  to 
its  proper  and  legitimate  end.  He  stands  in  the  same  predi- 
cament as  a  king  in  his  minority,  or  labouring  under  a  de- 
rangement of  his  mental  faculties.  In  such  circumstances,  it 
is  necessary  that  the  person  or  persons  whom  the  laws  of  the 
state  designate  for  the  regency  should  assume  the  reins  of 
government.  To  them  it  belongs  to  treat  of  peace,  to  settle 
the  terms  on  which  it  shall  be  made,  and  to  bring  it  to  a  con- 
clusion, in  conformity  to  the  laws. 

The  captive  sovereign  may  himself  negotiate  the  peace, 
and  promise  what  personally  depends  on  him :  but  the  treaty 
does  not  become  obligatory  on  the  nation  till  ratified  by  her- 
self, or  by  those  who  are  invested  with  the  public  authority 
during  the  prince's  captivity,  or,  finally,  by  the  sovereign  [  436  ] 
himself  after  his  release. 

But,  if  it  is  a  duty  incumbent  on  the  state  to  use  her  best 
efforts  for  procuring  the  release  of  the  most  inconsiderable 
of  her  citizens  who  has  lost  his  liberty  in  the  public  cause,  the 
obligation  is  much  stronger  in  the  case  of  her  sovereign, 
whose  cares,  attention,  and  labours  are  devoted  to  the  common 
safety  and  welfare.  It  was  in  fighting  for  his  people  that  the 
prince,  who  has  been  made  prisoner,  fell  into  that  situation, 
which,  to  a  person  of  his  exalted  rank,  must  be  wretched  in  the 
extreme :  and  shall  that  very  people  hesitate  to  deliver  him 
at  the  expense  of  the  greatest  sacrifices  ?  On  so  melancholy 
an  occasion,  they  should  not  demur  at  any  thing  short  of  the 
very  existence  of  the  state.  But,  in  every  exigency,  the  safety 
of  the  people  is  the  supreme  law ;  and,  in  so  severe  an  extre- 
mity, a  generous  prince  will  imitate  the  example  of  Regulus. 
That  heroic  citizen,  being  sent  back  to  Rome  on  his  parole, 
dissuaded  the  Romans  from  purchasing  his  release  by  an  in- 
glorious treaty,  though  he  was  not  ignorant  of  the  tortures 
prepared  for  him  by  the  cruelty  of  the  Carthaginians.* 

When  an  unjust  conqueror,  or  any  other  usurper,  has  in-  §  14   Whe- 
vaded  the  kingdom,  he  becomes  possessed  of  all  the  powers ther  peace 
of  government  when  once  the  people  have  submitted  to  him, can  be  mado 
and,  by  a  voluntary  homage,  acknowledged   him   as   their  ys^rp*° 
sovereign.     Other  states,  as  having  no  right  to  intermeddle 
with  the  domestic  concerns  of  that  nation,  or  to  interfere  in 
her  government,  are  bound  to  abide  by  her  decision,  and  to 
look  no  farther  than  the  circumstances  of  actual  possession. 
They  may,  therefore,  broach  and  conclude  a  treaty  of  peace 
with  the  usurper.     They  do  not  thereby  infringe  the  right  of 
the  lawful  sovereign :  it  is  not  their  business  to  examine  and 
judge  of  that  right :  they  leave  it  as  it  is,  and  only  look  to 
the  possession,  in  all  the  affairs  they  have  to  transact  with 

*  See  Tit  Lir.  Epitom.  lib.  xviii.  and  .other  historians. 
7«  2W  553 


436  OP   TREATIES   OP   PEACE. 

BOOK  iv.  that  kingdom,  pursuant  to  their  own  rights  and  those  of  the 
CHAP,  it.  nation  whose  sovereignty  is  contested.  But  this  rule  does  not 
preclude  them  from  espousing  the  quarrel  of  the  dethroned 
monarch,  and  assisting  him,  if  he  appears  to  have  justice  on 
his  side :  they  then  declare  themselves  enemies  of  the  nation 
which  has  acknowledged  his  rival,  as,  when  two  different  states 
are  at  war,  they  are  at  liberty  to  assist  either  party  whose  pre- 
tensions appear  to  be  best  founded. 

g  15.  Allies  The  principal  in  the  war,  the  sovereign  in  whose  name  it 
included  in  j^g  ^een  carried  on,  cannot  justly  make  a  peace  without  in- 
ofVeaTe?  eluding  his  allies, — I  mean  those  who  have  given  him  assist- 
ance without  directly  taking  part  in  the  war.  This  precaution 
is  necessary,  in  order  to  secure  them  from  the  resentment  of 
the  enemy :  for  though  the  latter  has  no  right  to  take  offence 
against  his  adversary's  allies,  whose  engagements  were  purely 
of  a  defensive  nature,  and  who  have  done  nothing  more  than 
[  437  ]  faithfully  execute  their  treaties  (Book  III.  §  101)— yet  it  too 
frequently  happens  that  the  conduct  of  men  is  influenced  by 
their  passions  rather  than  by  justice  and  reason.  If  the  alli- 
ance was  not  of  prior  date  to  the  commencement  of  the  war, 
and  was  formed  with  a  view  to  that  very  war, — although  these 
new  allies  do  not  engage  in  the  contest  with  all  their  force, 
nor  directly  as  principals,  they  nevertheless  give  to  the  prince 
against  whom  they  have  joined,  just  cause  to  treat  them  as 
enemies.  The  sovereign,  therefore,  whom  they  have  assisted, 
must  not  omit  including  them  in  the  peace. 

But  the  treaty  concluded  by  the  principal  is  no  farther 
obligatory  on  his  allies  than  as  they  are  willing  to  accede  to 
it,  unless  they  have  given  him  full  power  to  treat  for  them. 
By  including  them  in  his  treaty,  he  only  acquires  a  right,  with 
respect  to  his  reconciled  enemy,  of  insisting  that  he  shall  not 
attack  those  allies  on  account  of  the  succours  they  have  fur- 
nished against  him, — that  he  shall  not  molest  them,  but  shall 
live  in  peace  with  them  as  if  nothing  had  happened. 
\  16.  Asso-  Sovereigns  who  have  associated  in  a  war, — all  those  who 
ciates  to  have  directly  taken  part  in  it, — are  respectively  to  make  their 
*rea*ies  °f  peace,  each  for  himself.  Such  was  the  mode 
adopted  at  Nimeguen,  at  Ryswick,  and  at  Utrecht.  But  the 
alliance  obliges  them  to  treat  in  concert.  To  determine  in 
what  cases  an  associate  may  detach  himself  from  the  alliance, 
and  make  a  separate  peace,  is  a  question  which  we  have  ex- 
amined in  treating  of  associations  in  war  (Book  III.  Chap.  VI.), 
and  of  alliances  in  general  (Book  II.  Chap.  XII.  and  XV). 
g  17.  Medi-  It  frequently  happens  that  two  nations,  though  equally 
ntion.  tired  of  the  war,  do  nevertheless  continue  it  merely  from  a 
fear  of  making  the  first  advances  to  an  accommodation,  as 
these  may  be  imputed  to  weakness ;  or  they  persist  in  it 
from  animosity,  and  contrary  to  their  real  interests.  On 
such  occasions,  some  common  friends  of  the  parties  effectually 
interpose,  by  offering  themselves  as  mediators.  There  cannot 

$54 


OF   TREATIES   OF   PEACE.  437 


be  a  more  beneficent  office,  and  more  becoming  a  great  prince,    ROOK  iv. 
than  that  of  reconciling  two  nations  at  war,  and  thus  putting    CHAP-  n- 
a  stop  to  the  effusion  of  human  blood :  it  is  the  indispensable 
duty  of  those  who  have  the  means  of  performing  it  with  suc- 
cess.    This  is  the  only  reflection  we  shall   here  make  on  a 
subject  we  have  already  discussed  (Book  II.  §  328). 

A  treaty  of  peace  can  be  no  more  than  a  compromise,  g  is.  On 
Were  the  rules  of  strict  and  rigid  justice  to  be  observed  in  it,  what  footing 
so  that  each  party  should  precisely  receive  every  thing  to  which  peace  may 
he  has  a  just  title,  it  would  be  impossible  ever  to  make  a  peace.  cleu^" 
First,  with  regard  to  the  very  subject  which  occasioned  the 
war,  one  of  the  parties  would  be  under  a  necessity  of  acknow- 
ledging himself  in  the  wrong,  and  condemning  his  own  just 
pretensions :  which  he  will  hardly  do,  unless  reduced  to  the 
last  extremity.  But  if  he  owns  the  injustice  of  his  cause,  he 
must  at  the  same  time  condemn  every  measure  he  has  pur- 
sued in  support  of  it :  he  must  restore  what  he  has  unjustly 
taken,  must  reimburse  the  expenses  of  the  war,  and  repair 
the  damages.  And  how  can  a  just  estimate  of  all  the  damages 
be  formed  ?  What  price  can  be  set  on  all  the  blood  that  has  [  438  ] 
been  shed,  the  loss  of  such  a  number  of  citizens,  and  the  ruin 
of  families !  Nor  is  this  all.  Strict  justice  would  further 
demand,  that  the  author  of  an  unjust  war  should  suffer  a  pe- 
nalty proportioned  to  the  injuries  for  which  he  owes  satisfac- 
tion, and  such  as  might  insure  the  future  safety  of  him  whom 
he  attacked.  How  shall  the  nature  of  that  penalty  be  deter- 
mined, and  the  degree  of  it  be  precisely  regulated  ?  In  fine, 
even  he  who  had  justice  on  his  side  may  have  transgressed 
the  bounds  of  justifiable  self-defence,  and  been  guilty  of  im- 
proper excesses  in  the  prosecution  of  a  war  whose  object  was 
originally  lawful :  here  then  are  so  many  wrongs,  of  which 
strict  justice  would  demand  reparation.  He  may  have  made 
conquests  and  taken  booty  beyond  the  value  of  his  claim. 
Who  shall  make  an  exact  calculation,  a  just  estimate  of  this  ? 
Since,  therefore,  it  would  be  dreadful  to  perpetuate  the  war, 
or  to  pursue  it  to  the  utter  ruin  of  one  of  the  parties, — and 
since,  however  just  the  cause  in  which  we  are  engaged,  we 
must  at  length  turn  our  thoughts  towards  the  restoration  of 
peace,  and  ought  to  direct  all  our  measures  to  the  attainment 
of  that  salutary  object, — no  other  expedient  remains  than 
that  of  coming  to  a  compromise  respecting  all  claims  and 
grievances  on  both  sides,  and  putting  an  end  to  all  disputes 
by  a  convention  as  fair  and  equitable  as  circumstances  will 
admit  of.  In  such  conventions,  no  decision  is  pronounced  on 
the  original  cause  of  the  war,  or  on  those  controversies  to 
which  the  various  acts  of  hostility  might  give  rise ;  nor  is 
either  of  the  parties  condemned  as  unjust, — a  condemnation 
to  which  few  princes  would  submit ; — but,  a  simple  agreement 
is  formed,  which  determines  what  equivalent  each  party  shall 
receive  in  extinction  of  all  his  pretensions. 

555 


438  OF   TREATIES   OF   PEACE. 


BOOK  iv.        The  effect  of  the  treaty  of  peace  is  to  put  an  end  to  the 
CHAP-  "'    war,  and  to  abolish  the  subject  of  it.     It  leaves  the  contract- 
1 19.  Gene-  jng  partjes  no  right  to  commit  any  acts  of  hostility  on  account 
thelfeat  °of  e^tner  °f  tne  subject  itself  which  had  given  rise  to  the  war,  or, 
peace.          of  any  thing  that  was  done  during  its  continuance  :  wherefore 
they  cannot  lawfully  take  up  arms  again  for  the  same  subject. 
Accordingly,  in  such  treaties, '  the  contracting  parties  reci- 
procally engage  to  preserve  perpetual  peace :   which  is  not  to 
be  understood  as  if  they  promised  never  to  make  war  on  each 
other  for  any  cause  whatever.     The  peace  in  question  relates 
to  the  war  which  it  terminates  :  and  it  is  in  reality  perpetual, 
inasmuch  as  it  does  not  allow  them  to  revive  the  same  war,  by 
taking  up  arms  again  for  the  same  subject  which  had  origin- 
ally given  birth  to  it. 

A  special  compromise,  however,  only  extinguishes  the  par- 
ticular means  to  which  it  relates,  and  does  not  preclude  any 
subsequent  pretensions  to  the  object  itself,  on  other  grounds. 
Care  is  therefore  usually  taken  to  require  a  general  compro- 
mise, which  shall  embrace  not  only  the  existing  controversy, 
but  the  very  thing  itself  which  is  the  subject  of  that  contro- 
versy :  stipulation  is  made  for  a  general  renunciation  of  all 
pretensions  whatever  to  the  thing  in  question :  and  thus, 
although  the  party  renouncing  might  in  the  sequel  be  able  to 
[  439  ]  demonstrate  by  new  reasons  that  the  thing  did  really  belong 

to  him,  his  claim  would  not  be  admitted. 

f  20.  Am-  An  amnesty  is  a  perfect  oblivion  of  the  past ;  and  the  end 
nesty.  Of  peace  being  to  extinguish  all  subjects  of  discord,  this  should 
be  the  leading  article  of  the  treaty :  and  accordingly,  such 
is  at  present  the  constant  practice.  But  though  the  treaty 
should  be  wholly  silent  on  this  head,  the  amnesty,  by  the  very 
nature  of  the  peace,  is  necessarily  implied  in  it. 

g  21.  Things  As  each  of  the  belligerent  powers  maintains  that  he  has 
not  men-  justice  on  his  side, — and  as  their  pretensions  are  not  liable  to 
be  Judged  b7  others  (Book  IIL  §  188),— whatever  state  things 
happen  to  be  in  at  the  time  of  the  treaty  is  to  be  considered 
as  their  legitimate  state ;  and  if  the  parties  intend  to  make 
any  change  in  it,  they  must  expressly  specify  it  in  the  treaty. 
Consequently  all  things  not  mentioned  in  the  treaty  are  to 
remain  on  the  same  footing  on  which  they  stand  at  the  period 
when  it  is  concluded.  This  is  also  a  consequence  of  the  pro- 
mised amnesty.  All  damages  caused  during  the  war  are 
likewise  buried  in  oblivion ;  and  no  action  can  be  brought  for 
those  of  which  the  treaty  does  not  stipulate  the  reparation : 
they  are  considered  as  having  never  happened. 

\  22.  Things     But  the  effect  of  the  compromise  or  amnesty  cannot  be  ex- 

not  included  tended  to  things  which  have  no  relation  to  the  war  that  is 

n  the  com-  terminated  by  the  treaty.     Thus,  claims  founded  on  a  debt, 

amnesty0'    or  on  an  ^njurj  which  had  been  done  prior  to  the  war,  but 

which  made  no  part  of  the  reasons  for  undertaking  it,  still 

stand  on  their  former  footing,  and  are   not  abolished  by 

556 


OF  EXECUTION  OF  THE  TREATY  OF  PEACE.  439 

the  treaty,  unless  it  be  expressly  extended  to  the  extinction    BOOK  IT. 
of  every  claim  -whatever.     The  case  is  the  same  with  debts    CHAP"  "'•• 
contracted  during  the  war,  but  for  causes  which  have  no  re- 
lation to  it, — or  with  injuries  done  during  its  continuance, 
but  which  have  no  connection  with  the  state  of  warfare. 

Debts  contracted  with  individuals,  or  injuries  which  they 
may  have  received  from  any  other  quarter,  without  relation 
to  the  war,  are  likewise  not  abolished  by  the  compromise  and 
amnesty,  as  these  solely  relate  to  their  own  particular  object, — 
that  is  to  say,  to  the  war,  its  causes,  and  its  effects.  Thus, 
if  two  subjects  of  the  belligerent  powers  make  a  contract  to- 
gether in  a  neutral  country,  or  if  the  one  there  receives  an 
injury  from  the  other, — the  performance  of  the  contract,  or 
the  reparation  of  the  injury  and  damage,  may  be  prosecuted 
after  the  conclusion  of  the  treaty  of  peace. 

Finally,  if  the  treaty  expresses  that  all  things  shall  be  re- 
stored to  the  state  in  which  they  were  before  the  war,  this 
clause  is  understood  to  relate  only  to  immovable  possessions, 
and  cannot  be  extended  to  movables,  or  booty,  which  imme- 
diately becomes  the  property  of  the  captors,  and  is  looked  on 
as  relinquished  by  the  former  owners  on  account  of  the  diffi-  [  440  ] 
culty  of  recognising  it,  and  the  little  hope  they  entertain  of 
ever  recovering  it. 

When  the  last-made  treaty  mentions  and  confirms  other  ?  23.  Former 
treaties  of  prior  date,  these  constitute  a  part  of  the  new  one,  J^*^  d 
no  less  than  if  they  were  literally  transcribed  and  included  in™^1""* 
it :  and  any  new  articles  relating  to  former  conventions  are  to  firmed  in 
be  interpreted  according  to  the  rules  which  we  have  laid  down  the  new,  are 
in  a  preceding  part  of  this  work  (Book  II.  Chap.  XVII.  and  a  Part  of  i4- 
particularly  §  286). 


CHAP.  III.  CHAP,  in. 

OF   THE   EXECUTION   OF  THE   TREATY   OF   PEACE. 

A  TREATY  of  peace  becomes  obligatory  on  the  contract-  $  24.  when 
ing  parties  from  the  moment  of  its  conclusion, — the  moment  it the  obiiga- 
has  passed  through  all  the  necessary  forms :  and  they  are 
bound  to  have  it  carried  into  execution  without  delay.*  From 
that  instant  all  hostilities  must  cease,  unless  a  particular  day 

*  It  is  an  essential  point  to  neglect  to  the  Grand  Pensionary  De  Witt,  in 
none  of  the  formalities  which  can  in-  1662,  thus  observes — "  The  articles 
sure  the  execution  of  the  treaty,  and  and  conditions  of  this  alliance  con- 
prevent  new  disputes.  Accordingly,  tain  various  matters  of  different  na- 
care  must  be  taken  to  have  it  duly  tures,  the  majority  of  which  fall  under 
recorded  in  all  the  proper  offices  and  the  cognisance  of  the  privy  council, — 
courts.  M.  Van  Beuningen,  writing  several,  under  that  of  the  admiralty, 
2  w  2  557 


440  OF   EXECUTION   OF   THE 

BOOK  iv.  has  been  specified  for  the  commencement  of  the  peace.  But 
CHAP"  '"'  this  treaty  does  not  bind  the  subjects  until  it  is  duly  notified  to 
them.  The  case  is  the  same  in  this  instance  as  in  that  of 
a  truce  (Book  II.  §  239).  If  it  should  happen  that  military 
men,  acting  within  the  extent  of  their  functions  and  pursuant 
to  the  rules  of  their  duty,  commit  any  acts  of  hostility  before 
they  have  authentic  information  of  the  treaty  of  peace,  it  is  a 
misfortune,  for  which  they  are  not  punishable :  but  the  sove- 
reign, on  whom  the  treaty  of  peace  is  already  obligatory,  is 
bound  to  order  and  enforce  the  restitution  of  all  captures  made 
subsequent  to  its  conclusion :  he  has  no  right  whatever  to 
retain  them. 

?  25.  Pubii-  And  in  order  to  prevent  those  unhappy  accidents,  by  which 
^  many  innocen*  persons  may  lose  their  lives,  public  notice  of 
the  peace  is  to  be  given  without  delay,  at  least  to  the  troops. 
But  at  present,  as  the  body  of  the  people  cannot  of  themselves 
undertake  any  act  of  hostility,  and  do  not  personally  engage 
in  the  war,  the  solemn  proclamation  of  the  peace  may  be  de- 
ferred, provided  that  care  be  taken  to  put  a  stop  to  all  hosti- 
lities :  which  is  easily  done  by  means  of  the  generals  who 
direct  the  operations,  or  by  proclaiming  an  armistice  at  the 
head  of  the  armies.  The  peace  of  1735,  between  the  emperor 
and  France,  was  not  proclaimed  till  long  after.  The  procla- 

[  441  ]  mation  was  postponed  till  the  treaty  was  digested  at  leisure, — 
the  most  important  points  having  been  already  adjusted  in  the 
preliminaries.  The  publication  of  the  peace  replaces  the  two 
nations  in  the  state  they  were  in  before  the  war.  It  again 
opens  a  free  intercourse  between  them,  and  reinstates  the  sub- 
jects on  both  sides  in  the  enjoyment  of  those  mutual  privileges 
which  the  state  of  war  had  suspended.  On  the  publication, 
the  treaty  becomes  a  law  to  the  subjects :  and  they  are  thence- 
forward bound  to  conform  to  the  regulations  stipulated  therein. 
If,  for  instance,  the  treaty  imports  that  one  of  the  two  nations 
shall  abstain  from  a  particular  branch  of  commerce,  every 
subject  of  that  nation,  from  the  time  of  the  treaty's  being 
made  public,  is  obliged  to  renounce  that  commerce. 

g  26.    Time      When  no  particular  time  has  been  assigned  for  the  execu- 

of  the  exe-  ^on  Of  ^ne  treaty,  and  the  performance  of  the  several  articles, 
common  sense  dictates  that  every  point  should  be  carried  into 
effect  as  soon  as  possible :  and  it  was,  no  doubt,  in  this  light 
that  the  contracting  parties  understood  the  matter.  The 
faith  of  treaties  equally  forbids  all  neglect,  tardiness,  and 
studied  delays,  in  the  execution  of  them. 

— others,  under  that  of    the  civil  tri-  followed;    and   the    states-general   rc- 

bunals,      the      parliaments,     Ac. — es-  quired   that  the   treaty   concluded   the 

cheatage,   for    instance,    which    comes  same  year  should  be  recorded  in  all  the 

under   the   cognisance  of  the  chambre  parliaments  of  the  kingdom.     See  the 

des    comptes    [exchequer].      Thus,   the  king's  reply  on  this  subject,  in  his  letter 

treaty  must  be   recorded  in   all  those  to  the  Count  D'Estrades,  page   399. — 

different     places."      This    advice   was  Edit  A.D.  1797. 
558 


TEEATY   OF   PEACE.  441 

But  in  this  affair,  as  in  every  other,  a  legitimate  excuse,    BOOK  iv. 
founded  on  a  real  and  insurmountable  obstacle,  is  to  be  ad-   CHAI><  III- 


mitted ;  for  nobody  is  bound  to  perform  impossibilities.     The  §  27-  A  law~ 
obstacle,  when  it  does  not  arise  from  any  fault  on  the  side  of  ^^JJJJ? 
the  promising  party,  vacates  a  promise  which  cannot  be  made  ted. 
good  by  an  equivalent,  and  of  which  the  performance  cannot 
be  deferred  to  another  time.     If  the  promise  can  be  fulfilled 
on  another  occasion,  a  suitable  prolongation  of  the  time  must 
be  allowed.     Suppose  one  of  the  contracting  nations  has,  by 
the  treaty  of  peace,  promised  the  other  a  body  of  auxiliary 
troops :  she  will  not  be  bound  to  furnish  them,  if  she  happen 
to  stand  in  urgent  need  of  them  for  her  own  defence.  Suppose 
she  has  promised  a  certain  yearly  quantity  of  corn  :  it  cannot 
be  demanded  at  a  time  when  she  herself  labours  under  a 
scarcity  of  provisions ;  but,  on  the  return  of  plenty,  she  is 
bound  to  make  good  the  quantity  in  arrear,  if  required. 

It  is  further  held  as  a  maxim,  that  the  promiser  is  absolved  §  28.    The 
from  his  promise,  when,  after  he  has  made  his  preparations  Pr°mise  is 
for  performing  it  according  to  the  tenor  of  his  engagement,  he  ^e  ^^to 
is  prevented  from  fulfilling  it,  by  the  party  himself  to  whom  whom  it  was 
it  was  made.     The  promisee  is  deemed  to  dispense  with  the  made  has 
fulfilment  of  a  promise  of  which  he  himself  obstructs  the  exe- himself  hin- 
cution.     Let  us  therefore  add,  that  if  he  who  had  promised  JUJj^Jj^, 
a  thing  by  a  treaty  of  peace  was  ready  to  perform  it  at  the  Of  it. 
time  agreed  on,  or  immediately  and  at  a  proper  time  if  there 
was  no  fixed  term, — and  the  other  party  would  not  admit  of 
it,  the  promiser  is  discharged  from  his  promise :  for  the  pro- 
misee, not  having  reserved  to  himself  a  right  to  regulate  the 
performance  of  it  at  his  own  pleasure,  is  accounted  to  re- 
nounce it  by  not  accepting  of  it  in  proper  season  and  at  the 
time  for  which  the  promise  was  made.     Should  he  desire  that 
the  performance  be  deferred  till  another  time,  the  promiser  [  442  ] 
is  in  honour  bound  to  consent  to  the  prolongation,  unless  he 
can  show  by  very  good  reasons  that  the  promise  would  then 
become  more  inconvenient  to  him. 

To  levy  contributions  is  an  act  of  hostility  which  ought  to  \  29.    Ces- 
cease  as  soon  as  peace  is  concluded  (§  24).     Those  which  are sation  of 
already  promised,  but  not  yet  paid,  are  a  debt  actually  due ;  J^"1311' 
and,   as  such,  the  payment  may  be  insisted  on.      But,  in 
order  to  obviate  all  difficulty,  it  is  proper  that  the  contracting 
parties  should  clearly  and  minutely  explain  their  intentions 
respecting  matters  of  this  nature ;  and  they  are  generally 
careful  to  do  so. 

The  fruits  and  profits  of  those  things  which  are  restored  |  so.   Pro- 
by  a  treaty  of  peace  are  due  from  the  instant  appointed  fordu.cts  of  the 
carrying  it  into  execution :  and  if  no  particular  period  has  *^Jfd™^ 
been  assigned,  they  are  due  from  the  moment  when  the  re-  ceded. 
stitution  of  the  things  themselves  was  agreed  to :  but  those 
which  were  already  received  or  become  payable  before  the 
conclusion  of  the  peace,  are  not  comprised  in  the  restitution ; 

559 


442  OF  EXECUTION   OF  THE 

BOOK  iv.  for  the  fruits  and  profits  belong  to  the  owner  of  the  soil ;  and, 
CHAP-  In-  in  the  case  in  question,  possession  is  accounted  a  lawful  title. 
For  the  same  reason,  in  making  a  cession  of  the  soil,  we  do 
not  include  in  that  cession  the  rents  and  profits  antecedently 
due.  This  Augustus  justly  maintained  against  Sextus  Pom- 
pey,  who,  on  receiving  a  grant  of  the  Peloponnesus,  claimed 
the  imposts  of  the  preceding  years.* 

§  31.  in  Those  things,  of  which  the  restitution  is,  without  further 
what  condi-  explanation,  simply  stipulated  in  the  treaty  of  peace,  are  to 
tion  things  ke  restored  in  the  same  state  in  which  they  were  when  taken : 
stored b°  **' f°T  ^e  wor(^  "restitution"  naturally  implies  that  every  thing 
should  be  replaced  in  its  former  condition.  Thus,  the  resti- 
tution of  a  thing  is  to  be  accompanied  with  that  of  all  the 
rights  which  were  annexed  to  it  when  taken.  But  this  rule 
must  not  be  extended  to  comprise  those  changes  which  may 
have  been  the  natural  consequences  and  effects  of  the  war 
itself  and  of  its  operations.  A  town  is  to  be  restored  in  the 
condition  it  was  in  when  taken,  as  far  as  it  still  remains  in 
that  condition  at  the  conclusion  of  the  peace.  But  if  the 
town  has  been  razed  or  dismantled  during  the  war,  that  da- 
mage was  done  by  the  right  of  arms,  and  is  buried  in  oblivion 
by  the  act  of  amnesty.  We  are  under  no  obligation  to  repair 
the  ravages  that  have  been  committed  in  a  country  which  we 
restore  at  the  peace ;  we  restore  it  in  its  existing  state.  But, 
as  it  would  be  a  flagrant  perfidy  to  ravage  that  country  after 
the  conclusion  of  the  peace,  the  case  is  the  same  with  respect 
to  a  town  whose  fortifications  have  escaped  the  devastation  of 
war :  to  dismantle  it  previous  to  the  restoration  would  be  a  viola- 
tion of  good  faith  and  honour.  If  the  captor  has  repaired 
the  breaches,  and  put  the  place  in  the  same  state  it  was  in 
before  the  siege,  he  is  bound  to  restore  it  in  that  state.  If  he 
[  443  ]  has  added  any  new  works,  he  may  indeed  demolish  these : 
but  if  he  has  razed  the  ancient  fortifications,  and  constructed 
others  on  a  new  plan,  it  will  be  necessary  to  come  to  a  parti- 
cular agreement  respecting  this  improvement,  or  accurately 
to  define  in  what  condition  the  place  shall  be  restored.  In- 
deed this  last  precaution  should  in  every  case  be  adopted,  in 
order  to  obviate  all  dispute  and  difficulty.  In  drawing  up  an 
instrument  solely  intended  for  the  restoration  of  peace,  it 
should  be  the  object  of  the  parties  to  leave,  if  possible,  no 
ambiguity  whatever, — nothing  which  may  have  a  tendency  to 
rekindle  the  flames  of  war.  I  am  well  aware,  however,  that 
this  is  not  the  practice  of  those  who  value  themselves  now-a- 
days  on  their  superior  abilities  in  negotiation :  on  the  con- 
trary, they  study  to  introduce  obscure  or  ambiguous  clauses 
into  a  treaty  of  peace,  in  order  to  furnish  their  sovereign  with 
a  pretext  for  broaching  a  new  quarrel  and  taking  up  arms 
again  on  the  first  favourable  opportunity.  How  contrary 


*  Appian.  de  Bell.  Civ.  lib.  v.,  quoted  by  Grotius,  lib.  ii.  cap.  20,  §  22. 


TREATY   OF   PEACE.  443 

such  pitiful  finesse  is  to  the  faith  of  treaties,  we  have  already    BOOK  rv. 
observed  (Book  II.  §  231) :  it  is  a  disparagement  of  that  can-   CHAP'  Iir', 
dour  and  magnanimity  which  should  beam  forth  in  all  the 
actions  of  a  great  prince. 

But,  as  it  is  extremely  difficult  wholly  to  avoid  ambiguity  §  32-    Th« 
in  a  treaty,  though  worded  with  the  greatest  care  and  the  i°terpreta" 
most   honourable   intentions, — and   to   obviate   every  doubt  t*°"t°  of 
which  may  arise  in  the  application  of  its  several  clauses  to  peace  is  to 
particular  cases, — recourse  must  often  be  had  to  the  rules  of  t>e  against 
interpretation.     We  have  already  devoted  an  entire  chapter the  su^j^f 
to  the  exposition  of  those  important  rules  :*  wherefore,  instead  par  y' 
of  entering  at  present  into  tedious  repetitions,  we  shall  con- 
fine ourselves  to  a  few  rules  more  particularly  adapted  to  the 
special  case   before  us, — the   interpretation   of  treaties   of 
peace.     1.  In  case  of  doubt,  the  interpretation  goes  against 
him  who  prescribed  the  terms  of  the  treaty :  for  as  it  was 
in  some  measure  dictated  by  him,  it  was  his  own  fault  if  he 
neglected  to  express  himself  more  clearly :  and  by  extending 
or  restricting  the  signification  of  the   expressions   to  that 
meaning  which  is  least  favourable  to  him,  we  either  do  him  no 
injury,  or  we  only  do  him  that  to  which  he  has  wilfully  ex- 
posed himself;  whereas,  by  adopting  a  contrary  mode  of  in- 
terpretation, we  would  incur  the  risk  of  converting  vague  or 
ambiguous  terms  into  so  many  snares  to  entrap  the  weaker 
party  in  the  contract,  who  has  been  obliged  to  subscribe  to 
what  the  stronger  had  dictated. 

2.  The  names  of  countries  ceded  by  treaty  are  to  be  under-  ?  33-  Names 
stood  according  to  the  usage  prevailing  at  the  time  among of  ced?d 
skilful  and  intelligent  men :  for  it  is  not  to  be  presumed  that COIJ 
weak  or  ignorant  persons  should  be  intrusted  with  so  import- 
ant a  concern  as  that  of  concluding  a  treaty  of  peace ;  and 

the  articles  of  a  contract  are  to  be  understood  of  what  the 
contracting  parties  most  probably  had  in  contemplation, 
since  the  object  in  contemplation  is  the  motive  and  ground 
of  every  contract.  £  444  J 

3.  The  treaty  of  peace  naturally  and  of  itself  relates  only  g  34.  Resto- 
to  the  war  which  it  terminates.     It  is,  therefore,  in  such  re-rntionnott<) 
lation   only,  that  its  vague  clauses   are  to  be  understood. ^"j^" 
Thus,  the   simple  stipulation   of  restoring   things  to   their  those  wno  - 
former  condition  does  not  relate  to  changes  which  have  not  have  voiun- 
been  occasioned  by  the  war  itself:  consequently,  this  general  tarfiy  given 
clause  cannot  oblige  either  of  the  parties  to  set  at  liberty  a^hcmBelTes 
free  people  who  have  voluntarily  given  themselves  up  to  him  up' 
during  the  war.     And  as  a  people,  when  abandoned  by  their 
sovereign,  become  free,  and  may  provide  for  their  own  safety 

in  whatever   manner  they  think  most   advisable   (Book  I. 

(190)  As  to  the  construction  of  treaties  in  general,  see  Book  II.  Chap.  XVII. 

262,  ante,  244.— C. 

*  Book  II.  Chap.  XVII.  ante,  244—274. 

71  561 


444  OF   OBSERVANCE   AND   BREACH 

BOOK  iv.  §  202) — if  such  people,  during  the  course  of  the  war,  have 
CHAP,  m.^  voluntarily,  and  without  military  compulsion,  submitted  and 
given  themselves  up  to  the  enemy  of  their  former  sovereign, 
the  general  promise  of  restoring  conquests  shall  not  extend 
to  them.  It  were  an  unavailing  plea,  to  allege  that  the  party 
who  requires  all  things  to  be  replaced  on  their  former  footing 
may  have  an  interest  in  the  independence  of  the  former  of 
those  people,  and  that  he  evidently  has  a  very  great  one  in 
the  restoration  of  the  latter.  If  he  wished  to  obtain  things 
which  the  general  clause  does  not  of  itself  comprise,  he  should 
have  clearly  and  specifically  expressed  his  intentions  relative 
to  them.  Stipulations  of  every  kind  may  be  inserted  in  a 
treaty  of  peace ;  but  if  they  bear  no  relation  to  the  war 
which  it  is  the  view  of  the  contracting  parties  to  bring  to  a 
conclusion,  they  must  be  very  expressly  specified ;  for  the 
treaty  is  naturally  understood  to  relate  only  to  its  own  parti- 
cular object. 


«?•*>-  **•  CHAP.  IV. 

OF  THE  OBSERVANCE  AND  BREACH  OF  THE  TREATY  OF  PEACE. 

g  35.   The        THE  treaty  of  peace  concluded  by  a  lawful  power  is  un- 

treaty  of      doubtedly  a  public  treaty,  and  obligatory  on  the  whole  na- 

thTnluon    taon'(Book  II.  §  154).     It  is  likewise,  by  its  nature,  a  real 

and  socces-  treaty ;  for  if  its  duration  had  been  limited  to  the  life  of  the 

sore.  sovereign,  it  would  be  only  a  truce,  and  not  a  treaty  of  peace. 

Besides,  every  treaty  which,  like  this,  is  made  with  a  view  to 

the  public  good,  is  a  real  treaty  (Book  II.  §  198).     It  is 

therefore  as  strongly  binding  on  the  successors  as  on  the 

prince  himself  who  signed  it,  since  it  binds  the  state  itself, 

and  the  successors  can  never  have,  in  this  respect,  any  other 

rights  than  those  of  the  state. 

?  36.   It  is       After  all  we  have  said  on  the  faith  of  treaties  and  the  in- 
to be  faith-  <Jigpensable  obligation  which  they  impose,  it  would  be  super- 
served,        fluous  to  use  many  words  in  showing  how  religiously  treaties 
of  peace  in  particular  should  be  observed  both  by  sovereigns 
and  people.     These  treaties  concern  and  bind  whole  nations ; 
they  are  of  the  highest  importance ;  the  breach  of  them  in- 
[  445  ]  fallibly  rekindles  the  flames  of  war ; — all  which  considerations 
give  additional  force  to  the  obligation  of  keeping  our  faith, 
and  punctually  fulfilling  our  promises. 

g  37.   The       We  cannot  claim  a  dispensation  from  the  observance  of  a 

pica  of  fear  treaty  of  peace,  by  alleging  that  it  was  extorted  from  us  by 

or  force       fQa,f)  Qr  ^g^gd  fr0m  us  by  force.     In  the  first  place,  were 

1S~  this  plea  admitted,  it  would  destroy,  from  the  very  founda- 

562 


OF  THE  TREATY  OF  PEACE.  445 

tions,  all  the  security  of  treaties  of  peace ;  for  there  are    BOOK  iv. 
few  treaties  of  that  kind,  which  might  not  be  made  to  afford   CHAP' IV- 
such  a  pretext,  as  a  cloak  for  the  faithless  violation  of  them.  Pense  ™ih 
To  authorize  such  an  evasion  would  be  a  direct  attack  on  the  *^,e°bs 
common  safety  and  welfare  of  nations : — the  maxim  would an( 
be  detestable,  for  the  same  reasons  which  have  universally 
established  the  sacredness  of  treaties  (Book  II.  §  220).     Be- 
sides, it  would  generally  be  disgraceful  and  ridiculous  to  ad- 
vance such  a  plea.     At  the  present  day,  it  seldom  happens 
that  either  of  the  belligerent  parties  perseveres  to  the  last 
extremity  before   he  will   consent   to  a   peace.     Though   a 
nation  may  have  lost  several  battles,  she  can  still  defend 
herself:  as  long  as  she  has  men  and  arms  remaining,  she  is 
not  destitute  of  all  resource.     If  she  thinks  fit,  by  a  disad- 
vantageous treaty,  to  procure  a  necessary  peace, — if  by  great 
sacrifices  she  delivers  herself  from  imminent  danger  or  total 
ruin, — the  residue  which  remains  in  her  possession  is  still  an 
advantage  for  which  she  is  indebted  to  the  peace :  it  was  her 
own  free  choice  to  prefer  a  certain  and  immediate  loss,  but  of 
limited  extent,  to  an  evil  of  a  more  dreadful  nature,  which, 
though  yet  at  some  distance,  she  had  but  too  great  reason 
to  apprehend. 

If  ever  the  plea  of  constraint  may  be  alleged,  it  is  against 
an  act  which  does  not  deserve  the  name  of  a  treaty  of  peace, — 
against  a  forced  submission  to  conditions  which  are  equally 
offensive  to  justice  and  all  the  duties  of  humanity.  If  an  un- 
just and  rapacious  conqueror  subdues  a  nation,  and  forces  her 
to  accept  of  hard,  ignominious,  and  insupportable  conditions, 
necessity  obliges  her  to  submit :  but  this  apparent  tranquillity 
is  not  a  peace ;  it  is  an  oppression  which  she  endures  only  so 
long  as  she  wants  the  means  of  shaking  it  off,  and  against 
which  men  of  spirit  rise  on  the  first  favourable  opportunity. 
When  Ferdinand  Cortes  attacked  the  empire  of  Mexico  without 
any  shadow  of  reason,  without  even  a  plausible  pretext, — if 
the  unfortunate  Montezuma  could  have  recovered  his  liberty 
by  submitting  to  the  iniquitous  and  cruel  conditions  of  re- 
ceiving Spanish  garrisons  into  his  towns  and  his  capital,  of 
paying  an  immense  tribute,  and  obeying  the  commands  of  the 
king  of  Spain, — will  any  man  pretend  to  assert  that  he  would 
not  have  been  justifiable  in  seizing  a  convenient  opportunity 
to  recover  his  rights,  to  emancipate  his  people,  and  to  expel 
or  exterminate  the  Spanish  horde  of  greedy,  insolent,  and 
cruel  usurpers  ?  No  !  such  a  monstrous  absurdity  can  never 
be  seriously  maintained.  Although  the  law  of  nature  aims 
at  protecting  the  safety  and  peace  of  nations  by  enjoying  the 
faithful  observance  of  promises,  it  does  not  favour  oppressors.  [  44G  ] 
All  its  maxims  tend  to  promote  the  advantage  of  mankind : 
that  is  the  end  of  all  laws  and  rights.  Shall  he,  who  with  his 
own  hand  tears  asunder  all  the  bonds  of  human  society,  be 
afterwards  allowed  to  claim  the  benefit  of  them?  Even 

563 


446 


OF   OBSERVANCE   AND   BKEACH 


§38.  How 
many  ways 
a  treaty  of 
peace  may 
be  broken. 


§  39.     By 
a  conduct 
contrary  to 
the  nature 
of  every 
treaty  of 
peace. 


$40.    To 
take  up 
arms  for  a 
fresh  cause 


though  it  were  to  happen  that  this  maxim  should  be  abused, 
and  that  a  nation  should,  on  the  strength  of  it,  unjustly  rise 
in  arms  and  recommence  hostilities, — still  it  is  better  to  risk 
that  inconvenience  than  to  furnish  usurpers  with  an  easy  mode 
of  perpetuating  their  injustice,  and  establishing  their  usurpa- 
tion on  a  permanent  basis.  Besides,  were  you  to  preach  up 
the  contrary  doctrine  which  is  so-  repugnant  to  all  the  feelings 
and  suggestions  of  nature,  where  could  you  expect  to  make 
proselytes  ? 

Equitable  agreements,  therefore,  or  at  least  such  as  are 
supportable,  are  alone  entitled  to  the  appellation  of  treaties 
of  peace :  these  are  the  treaties  which  bind  the  public  faith, 
and  which  are  punctually  to  be  observed,  though  in  some  re- 
spects harsh  and  burdensome.  Since  the  nation  consented 
to  them,  she  must  have  considered  them  as  in  some  measure 
advantageous  under  the  then  existing  circumstances  ;  and  she 
is  bound  to  respect  her  promise.  Were  men  allowed  to  rescind 
at  a  subsequent  period  those  agreements  to  which  they  were 
glad  to  subscribe  on  a  former  occasion,  there  would  be  an  end 
to  all  stability  in  human  affairs. 

The  breach  of  a  treaty  of  peace  consists  in  violating  the 
engagements  annexed  to  it,  either  by  doing  what  it  prohibits, 
or  by  not  doing  what  it  prescribes.  Now,  the  engagements 
contracted  by  treaty  may  be  violated  in  three  different  ways, — 
either  by  a  conduct  that  is  repugnant  to  the  nature  and  es- 
sence of  every  treaty  of  peace  in  general, — by  proceedings 
which  are  incompatible  with  the  particular  nature  of  the  treaty 
in  question, — or,  finally,  by  the  violation  of  any  article  ex- 
pressly contained  in  it. 

First,  a  nation  acts  in  a  manner  that  is  repugnant  to  the 
nature  and  essence  of  every  treaty  of  peace,  and  to  peace 
itself,  when  she  disturbs  it  without  cause,  either  by  taking  up 
arms  and  recommencing  hostilities  without  so  much  as  a  plau- 
sible pretext,  or  by  deliberately  and  wantonly  offending  the 
party  with  whom  she  has  concluded  a  peace,  and  offering  such 
treatment  to  him  or  his  subjects  as  is  incompatible  with  the 
state  of  peace,  and  such  as  he  cannot  submit  to  without  being 
deficient  in  the  duty  which  he  owes  to  himself.  It  is  likewise 
acting  contrary  to  the  nature  of  all  treaties  of  peace  to  take 
up  arms  a  second  time  for  the  same  subject  that  had  given 
rise  to  the  war  which  has  been  brought  to  a  conclusion,  or 
through  resentment  of  any  transaction  that  had  taken  place 
during  the  continuance  of  hostilities.  If  she  cannot  allege  at 
least  some  plausible  pretext  borrowed  from  a  fresh  cause, 
which  may  serve  to  palliate  her  conduct,  she  evidently  revives 
the  old  war  that  was  extinct,  and  breaks  the  treaty  of  peace. 

But  to  take  up  arms  for  a  fresh  cause  is  no  breach  of  the 
treaty  of  peace :  for  though  a  nation  has  promised  to  live  in 
peace,  she  has  not  therefore  promised  to  submit  to  injuries 
and  wrongs  of  every  kind,  rather  than  procure  justice  by  force 

564 


OF  THE  TREATY  OF  PEACE.  446 

of  arms.     The  rupture  proceeds  from  him  who,  by  his  ob-    BOOK  IY. 
stinate  injustice,  renders  this  method  necessary.  CHAP,  iv. 

But  here  it  is  proper  to  recall  to  mind  what  we  have  more  is  no  breach 
than  once  observed, — namely,  that  nations  acknowledge  no  of  the  treaty 
common  judge  on  earth, — that  they  cannot  mutually  con- of  peace> 
demn  each  other  without  appeal, — and,   finally,   that  they  [  447  ] 
are  bound  to  act  in  their  quarrels  as  if  each  was  equally  in 
the  right.     On  this  footing,  whether  the  new  cause  which 
gives  birth  to  hostilities  be  just  or  not,  neither  he  who  makes 
it  a  handle  for  taking  up  arms,  nor  he  who  refuses  satisfac- 
tion, is  reputed  to  break  the  treaty  of  peace,  provided  the 
cause  of  complaint  on  the  one  hand,  and  the  refusal  of  satis- 
faction on  the  other,  have  at  least  some  colour  of  reason,  so 
as  to  render  the  question  doubtful.     When  nations  cannot 
come  to  any  agreement  on  questions  of  this  kind,  their  only 
•remaining  resource  is  an  appeal  to  the  sword.     In  such  case 
the  war  is  absolutely  a  new  one,  and  does  not  involve  any  in- 
fraction of  the  existing  treaty. 

And  as  a  nation,  in  making  a  peace,  does  not  thereby  give?  41-  A  sub- 
up  her  right  of  contracting  alliances  and  assisting  her  friends,  se<iuent  f1- 
it  is  likewise  no  breach  of  the  treaty  of  peace  to  form  a  sub-  anTnemy  is 
sequent  alliance  with  the  enemies  of  the  party  with  whom  she  likewise  no 
has  concluded  such  treaty, — to  join  them,  to  espouse  their  breach  of 
quarrel,  and  unite  her  arms  with  theirs, — unless  the  treaty the  ^^y- 
expressly  prohibits  such  connections.     At  most,  she  can  only 
be  said  to  embark  in  a  fresh  war  in  defence  of  another 
people's  cause. 

But  I  here  suppose  these  new  allies  to  have  some  plausible 
grounds  for  taking  up  arms,  and  that  the  nation  in  question 
has  just  and  substantial  reasons  for  supporting  them  in  the 
contest.  Otherwise,  to  unite  with  them  just  as  they  are  en- 
tering on  the  war,  or  when  they  have  already  commenced 
hostilities,  would  be  evidently  seeking  a  pretext  to  elude  the 
treaty  of  peace,  and  no  better,  in  fact,  than  an  artful  and 
perfidious  violation  of  it. 

It  is  of  great  importance  to  draw  a  proper  distinction  be-  ?  *2-  why  a 
tween  a  new  war  and  the  breach  of  an  existing  treaty  of  Distinction 
peace,  because  the  rights  acquired  by  such  treaty  still  subsist,  ^a^e  ^e, 
notwithstanding  the  new  war :  whereas  they  are  annulled  by  tween  a  new 
the  rupture  of  the  treaty  on  which  they  were  founded.     It  is  w&r and  a 
true,  indeed,  that  the  party  who  had  granted  those  rights 
does  not  fail  to  obstruct  the  exercise  of  them  during  the  course 
of  the  war,  as  far  as  lies  in  his  power, — and  even  may,  by 
the  right  of  arms,  wholly  deprive  his  enemy  of  them,  as  well 
as  he  may  wrest  from  him  his  other  possessions.    But  in  that 
case   he  withholds  those   rights  as  things  taken   from  the 
enemy,  who,  on  a  new  treaty  of  peace,  may  urge  the  restitu- 
tion of  them.     In  negotiations  of  that  kind,  there  is  a  ma- 
terial difference  between  demanding  the  restitution  of  what 
we  were  possessed  of  before  the  war,  and  requiring  new  con- 

2X  565 


448  OF   OBSERVANCE   AND    BREACH 


)K  IV. 


cessions :  a  little  equality  in  our  successes  entitles  us  to  in- 
CHAP-  IV-  sist  on  the  former,  whereas  nothing  less  than  a  decided  supe- 
riority can  give  us  a  claim  to  the  latter,  it  often  happens, 
when  nearly  equal  success  has  attended  the  arms  of  both  par- 
ties, that  the  belligerent  powers  agree  mutually  to  restore 
their  conquests,  and  to  replace  every  thing  in  its  former  state. 
When  this  is  the  case,  if  the  war  in  which  they  were  en- 
gaged was  a  new  one,  the  former  treaties  still  subsist ;  but 
if  those  treaties  were  broken  by  taking  up  arms  a  second 
time  for  the  same  subject,  and  an  old  war  was  revived,  they 
remain  void ;  so  that,  if  the  parties  wish  they  should  again 
take  effect,  they  must  expressly  specify  and  confirm  them 
in  their  new  treaty. 

The  question  before  us  is  highly  important  in  another 
view  also, — that  is,  in  its  relation  to  other  nations  who  may  be 
interested  in  the  treaty,  inasmuch  as  their  own  affairs  require 
them  to  maintain  and  enforce  the  observance  of  it.  It  is  of 
the  utmost  consequence  to  the  guarantees  of  the  treaty,  if 
there  are  any, — and  also  to  the  allies,  who  have  to  discover 
and  ascertain  the  cases  in  which  they  are  bound  to  furnish 
assistance.  Finally,  he  who  breaks  a  solemn  treaty  is  much 
more  odious  than  the  other,  who,  after  making  an  ill-grounded 
demand,  supports  it  by  arms.  The  former  adds  perfidy  to 
injustice :  he  strikes  at  the  foundation  of  public  tranquillity ; 
and  as  he  thereby  injures  all  nations,  he  affords  them  just 
grounds  for  entering  into  a  confederacy  in  order  to  curb  and 
repress  him.  Wherefore,  as  we  ought  to  be  cautious  of  im- 
puting the  more  odious  charge,  Grotius  justly  observes,  that, 
in  a  case  of  doubt,  and  where  the  recurrence  to  arms  may  be 
vindicated  by  some  specious  pretext  resting  on  a  new  ground, 
"it  is  better  that  we  should,  in  the  conduct  of  him  who  takes 
up  arms  anew,  presume  simple  injustice,  unaccompanied  by 
perfidy,  than  account  him  at  once  guilty  both  of  perfidy  and 
injustice."* 

g  43.  Justi-  Justifiable  self-defence  is  no  breach  of  the  treaty  of  peace. 
Cable  self-  It  is  a  natural  right  which  we  cannot  renounce :  and,  in  pro- 
defence  is  nriging  to  live  in  peace,  we  only  promise  not  to  attack  without 
of  the^trea  cause»  an(^  *°  abstain  from  injuries  and  violence.  But  there 
ty.  are  two  modes  of  defending  our  persons  or  our  property : 

sometimes  the  violence  offered  to  us  will  admit  of  no  other 
remedy  than  the  exertion  of  open  force ;  and  under  such  cir- 
cumstances, we  may  lawfully  have  recourse  to  it.  On  other 
occasions,  we  may  obtain  redress  for  the  damage  and  injury 
by  gentler  methods ;  and  to  these  we  ought  of  course  to  give 
the  preference.  Such  is  the  rule  of  conduct  which  ought  to 
be  observed  by  two  nations  that  are  desirous  of  maintaining 
peace,  whenever  the  subjects  of  either  have  happened  to  break 
out  into  any  act  of  violence.  Present  force  is  checked  and 


*  Lib.  iii.  cap.  20,  §  28. 


OF  THE  TREATY  OF  PEACE.  448 

repelled  by  force.     But,  if  there  is  question  of  obtaining    BOOK  rv. 
reparation  of  the  damage  done,  together  with  adequate  satis-  CHAP'  w' 
faction  for  the  offence,  we  must  apply  to -the  sovereign  of  the 
delinquents  :  we  must  not  pursue  them  into  his  dominions,  or 
have  recourse  to  arms,  unless  he  has  refused  to  do  us  justice. 
If  we  have  reason  to  fear  that  the  offenders  will  escape, — as,  r  449  1 
for  instance,  if  a  band  of  unknown  persons  from  a  neighbour- 
ing country  have  made  an  irruption  into  our  territory, — we 
are  authorized  to  pursue  them  with  an  armed  force  into  their 
own  country,  until  they  be  seized :  and  their  sovereign  can- 
not consider  our  conduct  in  any  other  light  than  that  of  just 
and  lawful  self-defence,  provided  we  commit  no  hostilities 
against  innocent  persons. 

When  the  principal  contracting  party  has  included  his  al-  £  44-  Causes 
lies  in  the  treaty,  their  cause  becomes  in  this  respect  insepa- of 
rable  from  his ;  and  they  are  entitled,  equally  with  him,  to 
enjoy  all  the  conditions  essential  to  a  treaty  of  peace ;  so 
that  any  act,  which,  if  committed  against  himself,  would  be  a 
breach  of  the  treaty,  is  no  less  a  breach  of  it,  if  committed 
against  the  allies  whom  he  has  caused  to  be  included  in  his 
treaty.  If  the  injury  be  done  to  a  new  ally,  or  to  one  who 
is  not  included  in  the  treaty,  it  may,  indeed,  furnish  a  new 
ground  for  war,  but  is  no  infringement  of  the  treaty  of  peace. 

The  second  way  of  breaking  a  treaty  of  peace  is  by  doing  ?  45.  2.  The 
any  thing  contrary  to  what  the  particular  nature  of  the  treaty treaty  is 
requires.     Thus,  every  procedure   that  is  inconsistent  with  w^ate^  Con_ 
the   rules  of  friendship  is  a  violation  of  a  treaty  of  peace  trary  to  its 
which  has  been  concluded  under  the  express  condition  of  particular 
thenceforward  living  in  amity  and  good  understanding.     To  nature- 
favour  a  nation's  enemies, — to  give  harsh  treatment  to  her ' 
subjects, — to  lay  unnecessary  restrictions  on  her  commerce, 
or  give  another  nation  a  preference  over  her  without  reason, — 
to  refuse  assisting  her  with  provisions,  which  she  is  willing 
to  pay  for,  and  we  ourselves  can  well  spare, — to  protect  her 
factious  or  rebellious  subjects, — to  afford  them  an  asylum, — 
all  such  proceedings  are  evidently  inconsistent  with  the  laws 
of  friendship.     To  this  list,  may,  according  to  circumstances, 
be  also  added — the  building  of  fortresses  on  the  frontiers  of 
a  state, — expressing   distrust   against  her, — levying  troops, 
and  refusing  to  acquaint  her  with  the  motives  of  such  step, 
&c.  (191)     But,  in   affording   a   retreat   to   exiles, — in   har- 
bouring subjects  who  chose  to  quit  their  country,  without  an 
intention  of  injuring  it  by  their  departure,  and  solely  for  the 
advantage  of  their  private  affairs, — in  charitably  receiving 
emigrants  who  depart  from  their  country  with  a  view  to  en- 
joy liberty  of  conscience  elsewhere, — there  is  nothing  incon- 
sistent with  the  character  of  a  friend.     The  private  laws  of 
friendship  do  not,  according  to  the  caprice  of  our  friends,  dis- 

(191)  And  see,  ante,  Book  in.  c.  3,  as  to  what  are  just  causes  of  war.— C. 

567 


449  OF    OBSERVANCE   AND    BREACH 


BOOK  iv. 
CHAP.  iv. 


pense  with  our  observance  of  the  common  duties  of  humanity 
which  we  owe  to  the  rest  of  our  species. 
§  46.  3.  By       Lastly,  the  peace  is  broken  by  the  violation  of  any  of  the 
the  violation  express  articles  of  the  treaty.     This  third  way  of  breaking  it 
of^any  arti-  jg  ^Q  most  decisive,  the  least  susceptible  of  quibble  or  evasion. 
Whoever  fails  in  his  engagements  annuls  the  contract  as  far 
as  depends  on  him : — this  cannot  admit  of  a  doubt, 
g  47.    The       But  it  is  asked  whether  the  violation  of  a  single  article  of 
violation  of  the  treaty  can  operate  a  total  rupture  of  it  ?     Some  writers,* 
tide  breiSw  ^ere  drawing  a  distinction  between  the  articles  that  are  con- 
the  whole     nected  together  (connexi)  and  those  that  stand  detached  and 
treaty.         separate  (diversi],  maintain,  that,  although  the  treaty  be  vio- 
lated in  the  detached  articles,  the  peace  nevertheless  still 
[  450  ]  subsists  with  respect  to  the  others.     But,  to  me,  the  opinion  of 
Grotius  appears  evidently  founded  on  the  nature  and  spirit 
of  treaties  of  peace.     That  great  man  says  that  all  the  arti- 
cles of  one  and  the  same  treaty  are  conditionally  included  in 
each  other,  as  if  each  of  the  contracting  parties  had  formally 
said,  "I  will  do  such  or  such  thing,  provided  that,  on  your 
part,  you  do  so  and  so;"f  an^  he  justly  adds,  that,  when  it 
is  designed  that  the  engagement  shall  not  be  thereby  rendered 
ineffectual,   this  express  clause  is  inserted, — that,   "though 
any  one  of  the  articles  of  the  treaty  may  happen  to  be  vio- 
lated, the  others  shall  subsist  in  full  force."     Such  an  agree- 
ment  may  unquestionably  be   made.     It  may  likewise   be 
agreed  that  the  violation  of  one  article  shall  only  annul  those 
corresponding  to  it,  and  which,  as  it  were,  constitute  the 
equivalent  to  it.     But,  if  this  clause  be  not  expressly  inserted 
in  the  treaty  of  peace,  the  violation  of  a  single  article  over- 
throws the  whole  treaty,  as  we  have  proved  above,  in  speak- 
ing of  treaties  in  general  (Book  II.  §  202). 

2  48.   Whe-     It  is  equally  nugatory  to  attempt  making  a  distinction  in 
t'her  a  dis-    this  instance  between  the  articles  of  greater  and  those  of 
tinction  may  ]esser  importance.     According  to  strict  justice,  the  violation 
hCr<i  bb        °^  ^e  most  trifling  article  dispenses  the  injured  party  from 
tween  the     the  observance  of  the  others,  since  they  are  all,  as  we  have 
more  and     seen  above,  connected  with  each  other,  as  so  many  conditions, 
the  less  im-  Besides,  what  a  source  of  dispute  will  such  a  distinction  lay 
open !     Who  shall  determine  the  importance  of  the  article 
violated  ?     We  may,  however,  assert  with  truth,  that,  to  be 
ever  ready  to  annul  a  treaty  on  the  slightest  cause  of  com- 
plaint, is  by  no  means  consonant  to  the  reciprocal  duties  of 
nations,  to  that  mutual  charity,  that  love  of  peace,  which 
should  always  influence  their  conduct. 

j?  49.    Pe-        In  order  to  prevent  so  serious  an  inconvenience,  it  is  pru- 

naity  an-     dent  to  agree  on  a  penalty  to  be  suffered  by  the  party  who 

nexed  to  the  Vi0iates  any  of  the  less  important  articles  :  and  then,  on  his 

submitting  to  the  penalty,  the  treaty  still  subsists  in  full  force. 

~~*See  Wolf.  Jus  Gent  gg  1022, 1023.  f  ™>>  "*•  cap.  xix.  §  14. 

568 


OF   THE   TREATY   OF   PEACE.  450 

In  like  manner,  there  may,  to  the  violation  of  each  individual    BOOK  rv. 
article,  be  annexed  a  penalty  proportionate  to  its  importance.    ° 


We  have  treated  of  this  subject  in  our  remarks  on  truces  violation  of 
(Book  III.  §  243),  to  which  we  refer  the  reader.  an  article- 

Studied  delays  are   equivalent  to  an  express  denial,  and  %  50.  Stu- 
differ  from  it  only  by  the  artifice  with  which  he  who  practises  died  delays, 
them  seeks  to  palliate  his  want  of  faith  :  he  adds  fraud  to  per- 
fidy, and  actually  violates  the  article  which  he  should  fulfil. 

But,  if  a  real  impediment  stand  in  the  way,  time  must  be  \  51.  Insur- 
allowed ;  for  no  one  is  bound  to  perform  impossibilities.  And  mountabie 
for  the  same  reason,  if  any  insurmountable  obstacle  should  ^^g1" 
render  the  execution  of  an  article  not  only  impracticable  for 
the  present,  but  for  ever  impossible,  no  blame  is  imputable 
to  him  who  had  engaged  for  the  performance  of  it;  nor  can  his 
inability  furnish  the  other  party  with  a  handle  for  annulling  [  451  ] 
the  treaty :  but  the  latter  should  accept  of  an  indemnification, 
if  the  case  will  admit  of  it,  and  the  indemnification  be  prac- 
ticable. However,  if  the  thing  which  was  to  have  been  per- 
formed in  pursuance  of  the  article  in  question  be  of  such  a 
nature  that  the  treaty  evidently  appears  to  have  been  con- 
cluded with  a  sole  view  to  that  particular  thing,  and  not  to 
any  equivalent, — the  intervening  impossibility  undoubtedly 
cancels  the  treaty.  Thus,  a  treaty  of  protection  becomes  void 
when  the  protector  is  unable  to  afford  the  promised  protection, 
although  his  inability  does  not  arise  from  any  fault  on  his 
part.  In  the  same  manner,  also,  whatever  promises  a  sove- 
reign may  have  made  on  condition  that  the  other  party  should 
procure  him  the  restoration  of  an  important  town,  he  is  re- 
leased from  the  performance  of  every  thing  which  he  had  pro- 
mised as  the  purchase  of  the  recovery,  if  he  cannot  be  put  in 
possession.  Such  is  the  invariable  rule  of  justice.  But  rigid 
justice  is  not  always  to  be  insisted  on : — peace  is  so  essential 
to  the  welfare  of  mankind,  and  nations  are  so  strictly  bound 
to  cultivate  it,  to  procure  it,  and  to  re-establish  it  when  inter- 
rupted,— that,  whenever  any  such  obstacles  impede  the  exe- 
cution of  a  treaty  of  peace,  we  ought  ingenuously  to  accede 
to  every  reasonable  expedient,  and  accept  of  equivalents  or 
indemnifications,  rather  than  cancel  a  treaty  of  peace  already 
concluded,  and  again  have  recourse  to  arms. 

We  have  already,  in  an  express  chapter  (Book  II.  Chap.  1 52.  infrae- 
VI.),  examined  how  and  on  what  occasions  the  actions  of  tions  of  the 
subjects  may  be  imputed  to  the  sovereign  and  the  nation.  It  ^ 
is  by  that  circumstance  we  must  be  guided  in  determining  how 
far  the  proceedings  of  the  subjects  may  be  capable  of  annul- 
ling a  treaty  of  peace.  They  cannot  produce  such  effect  un- 
less so  far  as  they  are  imputable  to  the  sovereign.  He  who 
is  injured  by  the  subjects  of  another  nation  takes  satisfaction 
for  the  offence,  himself,  when  he  meets  with  the  delinquents 
in  his  own  territories,  or  in  a  free  place,  as,  for  instance,  on 
the  open  sea ;  or  if  it  be  more  agreeable  to  him,  he  demands 

72  2x2  569 


451  OF  OBSERVANCE  AND  BREACH  OF  TREATY,  ETC. 

BOOK  iv.  justice  of  their  sovereign.  If  the  offenders  are  refractory 
CHAP'  1V-  subjects,  no  demand  can  be  made  on  their  sovereign ;  but 
whoever  can  seize  them,  even  in  a  free  place,  executes  sum- 
mary justice  on  them  himself.  Such  is  the  mode  observed 
towards  pirates :  and,  in  order  to  obviate  all  misunderstand- 
ings, it  is  generally  agreed  that  the  same  treatment  be  given 
to  all  private  individuals  who  c6mmit  acts  of  hostility  without 
being  able  to  produce  a  commission  from  their  sovereign. 
§  53.  Or  by  The  actions  of  our  allies  are  still  less  imputable  to  us  than 
allies.  those  of  our  subjects.  The  infractions  of  a  treaty  of  peace 
by  allies,  even  by  those  who  have  been  included  in  it,  or  who 
joined  in  it  as  principals,  can  therefore  produce  no  rupture 
of  it  except  with  regard  to  themselves,  and  do  not  affect  it  in 
[  452  ]  what  concerns  their  ally,  who,  on  his  part,  religiously  ob- 
serves his  engagements.  With  respect  to  him,  the  treaty  sub- 
sists in  full  force,  provided  he  do  not  undertake  to  support 
the  cause  of  those  perfidious  allies.  If  he  furnishes  them  with 
such  assistance  as  he  cannot  be  bound  to  give  them  on  an  oc- 
casion of  this  nature,  he  espouses  their  quarrel,  and  becomes 
an  accomplice  in  their  breach  of  faith.  But,  if  he  has  an  in- 
terest in  preventing  their  ruin,  he  may  interpose,  and,  by 
obliging  them  to  make  every  suitable  reparation,  save  them 
from  an  oppression  of  which  he  would  himself  collaterally  feel 
the  effects.  It  even  becomes  an  act  of  justice  to  undertake 
their  defence  against  an  implacable  enemy,  who  will  not  be 
contented  with  an  adequate  satisfaction. 

\  54.  Right     When  the  treaty  of  peace  is  violated  by  one  of  the  con- 
of  the         tracting  parties,  the  other  has  the  option  of  either  declaring 
°artnded       the  treatJ  nul1  ant*  v°id>  or  allowing  it  still  to  subsist :  for  a 
against  him  contract  which  contains  reciprocal  engagements,  cannot  be 
who  has  vio-  binding  on  him  with  respect  to  the  party  who  on  his  side 
lated  the      pays  no  regard  to  the  same  contract.     But,  if  he  chooses  not 
treaty.         ^Q  come  ^0  a  rupture,  the  treaty  remains  valid  and  obligatory. 
It  would  be  absurd  that  he  who  had  been  guilty  of  the  vio- 
lation should  pretend  that  the  agreement  was  annulled  by  his 
own  breach  of  faith :  this  would,  indeed,  be  an  easy  way  of 
shaking  off  engagements,  and  would  reduce  all  treaties  to 
empty  formalities.     If  the  injured  party  be  willing  to  let 
the  treaty  subsist,  he  may  either  pardon  the  infringement, — 
insist  on   an   indemnification  or   adequate   satisfaction,— or 
discharge  himself,  on  his  part,  from  those  engagements  cor- 
responding with  the  violated  article, — those  promises  he  had 
made  in  consideration  of  a  thing  which  has  not  been  performed. 
But,  if  he  determines  on  demanding  a  just  indemnification, 
and  the  party  in  fault  refuses  it,  then  the  treaty  is  necessa- 
rily broken,  and  the  injured  party  has  a  very  just  cause  for 
taking  up  arms  again.     And  indeed  this  is  generally  the  case ; 
for  it  seldom  happens  that  the  infractor  will  submit  to  make 
reparation,  and  thereby  acknowledge  himself  in  fault. 

570 


OF  THE   RIGHT   OF   EMBASSY.  452 


BOOK   IV. 
CHAP.   T. 


CHAP.  V. 

OF   THE   RIGHT   OF  EMBASSY,  OR   THE   RIGHT   OF  SENDING  AND 
RECEIVING   PUBLIC   MINISTERS. 

IT  is  necessary  that  nations  should  treat  and  hold  inter-  \  55.   it  is 
course  together,  in  order  to  promote  their  interests, — to  avoid  necessary 
injuring  each  other, — and  to  adiust  and  terminate  their  dis-  *hat  nt*,lor8 

•>          °  .      ,  •••»«•  11       •     i«  11       IT        •       be  enabled 

putes.    And  as  they  all  lie  under  the  indispensable  obligation  to  treat  and 
of  giving  their  consent  and  concurrence  to  whatever  conduces  communi- 
to  the  general  advantage  and  welfare  (Prelim.  §  13) — of  cate  tose- 
procuring  the  means  of  accommodating  and  terminating  their tben 
differences  (Book  II.  §  323,  &c.) — and  as  each  has  a  right  to 
every  thing  which  her  preservation  requires  (Book  I.  §  18) —  r  453  ] 
to  every  thing  which  can  promote  her  perfection  without  in- 
juring others  (Ib.  §  23),  as  also  to  the  necessary  means  of  ful- 
filling her  duties, — it  results  from  the  premises,  that  each  na- 
tion is  at  once  possessed  of  the  right  to  treat  and  communicate 
with  others,  and  bound  by  reciprocal  obligation  to  consent 
to  such  communication  as  far  as  the  situation  of  her  affairs 
will  permit  her. 

But  nations  or  sovereign  states  do  not  treat  together  im-  g  56.   They 
mediately :  and  their  rulers  or  sovereigns  cannot  well  come  do  this  by 
to  a  personal  conference  in  order  to  treat  of  their  affairs.  ^e  *^£°7 
Such  interviews  would  often  be  impracticable;  and,  exclu- ministers, 
sive  of  delays,  trouble,  expense,  and  so  many  other  inconve- 
niences, it  is  rarely,  according  to  the  observation  of  Philip 
de  Commines,  that  any  good  effect  could  be  expected  from 
them.     The  only  expedient,  therefore,  which  remains  for  na- 
tions and  sovereigns,  is  to  communicate  and  treat  with  each 
other  by  the  agency  of  procurators  or  mandatories, — of  dele- 
gates charged  with  their  commands,  and  vested  with  their 
powers, — that  is  to  say,  public  ministers.     This  term,  in  its 
more  extensive  and  general  sense,  denotes  any  person  intrust- 
ed with  the  management  of  public  affairs,  but  is  more  par- 
ticularly understood  to  designate  one  who  acts  in  such  capa- 
city at  a  foreign  court. 

At  present  there  are  several  orders  of  public  ministers, 
and  in  the  sequel  we  shall  speak  of  them ;  but  whatever  dif- 
ference custom  has  introduced  between  them,  the  essential 
character  is  common  to  them  all ;  I  mean  that  of  minister, 
and,  in  some  sort,  representative  of  a  foreign  power, — a  per- 
son charged  with  the  commands  of  that  power,  and  delegated 
to  manage  his  affairs :  and  that  quality  is  sufficient  for  our 
present  purpose. 

Every  sovereign  state  then  has  a  right  to  send  and  to  re-  \  57.  Every 
ceive  public  ministers;  for  they  are  necessary  instruments  sovereign 

571 


453  OF   THE   RIGHT   OF   EMBASSY. 

BOOK  iv.    in  the  management  of  those  affairs  -which  sovereigns  have  to 
CHAP. j^  transact  with  each  other,  and  the  channels  of  that  correspond- 


state  has  a  ence  which  they  have  a  right  to  carry  on.  In  the  first  chapter 
right  to  send  Of  this  work  may  be  seen  who  are  those  sovereigns,  and  what 
aubiicCm? 6  those  independent  states,  that  are  entitled  to  rank  in  the  great 
nisters.  *  society  of  nations.  They  are  the  powers  to  whom  belongs  the 

right  of  embassy. 

§  58.  An  un-  An  unequal  alliance,  or  even  a  treaty  of  protection,  not 
equal  alii-  bemg  incompatible  with  sovereignty  (Book  I.  §§  5,  6), — such 
treat  "of*  treaties  do  not  of  themselves  deprive  a  state  of  the  right  of 
protection,  sending  and  receiving  public  ministers.  If  the  inferior  ally 
does  not  '  or  the  party  protected  has  not  expressly  renounced  the  right 
take  away  Of  entertaining  connections  and  treating  with  other  powers, 
this  right  ne  necessariiy  retains  that  of  sending  ministers  to  them,  and 

of  receiving  their  ministers  in  turn.     The  same  rule  applies 

to  such  vassals  and  tributaries  as  are  not  subjects  (Book  I. 

§§  7,  8). 

1 59.  Right     Nay  more,  this  right  may  even  belong  to  princes  or  commu- 
of  the          nities  not  possessed  of  sovereign  power  :  for  the  rights  whose 
pn°cosfa^  assemblage  constitutes  the  plenitude  of  sovereignty,  are  not 
empire°in  °  indivisible :  and  if,  by  the  constitution  of  the  state,  by  the 
this  respect,  concession  of  the  sovereign,  or  by  reservations  which  the 

subjects  have  made  with  him,  a  prince  or  community  remains 
[  454  ]  possessed  of  any  one  of  those  rights  which  usually  belong  to 
the  sovereign  alone,  such  prince  or  community  may  exercise 
it,  and  avail  themselves  of  it  in  all  its  effects  and  all  its  natu- 
ral or  necessary  consequences,  unless  they  have  been  for- 
mally excepted.  Though  the  princes  and  states  of  the  empire 
are  dependent  on  the  emperor  and  the  empire,  yet  they  are 
sovereign  in  many  respects ;  and  as  the  constitutions  of  the 
empire  secure  to  them  the  right  of  treating  with  foreign 
powers  and  contracting  alliances  with  them,  they  incontest- 
ably  have  also  that  of  sending  and  receiving  public  ministers. 
The  emperors,  indeed,  when  they  felt  themselves  able  to  carry 
their  pretensions  very  high,  have  sometimes  disputed  that  right, 
or  at  least  attempted  to  render  the  exercise  of  it  subject  to 
the  control  of  their  supreme  authority, — insisting  that  their 
permission  was  necessary  to  give  it  a  sanction.  But  since 
the  peace  of  Westphalia,  and  by  means  of  the  imperial  capi- 
tulations, the  princes  and  states  of  Germany  have  been  able 
to  maintain  themselves  in  the  possession  of  that  right ;  and 
they  have  secured  to  themselves  so  many  other  rights,  that 
the  empire  is  now  considered  as  a  republic  of  sovereigns. 

1 60.  Cities     There  are  even  cities  which  are  and  which  acknowledge 
that  have     themselves  to  be  in  a  state  of  subjection,  that  have  never- 
the  right  of  tneiesg  a  right  to  receive  the  ministers  of  foreign  powers,  and 

iner'  to  send  them  deputies,  since  they  have  a  right  to  treat  with 
them.  This  latter  circumstance  is  the  main  point  upon  which 
the  whole  question  turns :  for  whosoever  has  a  right  to  the 
end,  has  a  right  to  the  means.  It  would  be  absurd  to  ac- 

572 


OF  THE   EIGHT   OF   EMBASSY.  454 

knowledge  the  right  of  negotiating  and  treating,  and  to  con-   BOOK  IT. 
test  the  necessary  means  of  doing  it.     Those  cities  of  Swit-    CHAP-,  T- . 


zerland,  such  as  Neufchatel  and  Bienne,  which  have  the  right 
of  banner,  have,  by  natural  consequence,  a  right  to  treat  with 
foreign  powers,  although  the  cities  in  question  be  subject  to 
the  dominion  of  a  prince :  for  the  right  of  banner,  or  of  arms, 
comprehends  that  of  granting  succours  of  troops,*  provided 
such  grants  be  not  inconsistent  with  the  service  of  the  prince. 
Now,  if  those  cities  are  entitled  to  grant  troops,  they  must 
necessarily  be  at  liberty  to  listen  to  the  applications  made  to 
them  on  the  subject  by  a  foreign  power,  and  to  treat  respect- 
ing the  conditions.  Hence  it  follows  that  they  may  also 
depute  an  agent  to  him  for  that  purpose,  or  receive  his  mi- 
nisters. And  as  they  are  at  the  same  time  vested  with  the 
administration  of  their  own  internal  police,  they  have  it  in 
their  power  to  insure  respect  to  such  foreign  ministers  as 
come  to  them.  "What  is  here  said  of  the  rights  of  those  cities 
is  confirmed  by  ancient  and  constant  practice.  However  ex- 
alted and  extraordinary  such  rights  may  appear,  they  will 
not  be  thought  strange,  if  it  be  considered  that  those  very 
cities  were  already  possessed  of  extensive  privileges  at  the 
time  when  their  princes  were  themselves  dependent  on  the 
emperors,  or  on  other  liege  lords  who  were  immediate  vassals  [  455  ] 
of  the  empire.  When  the  princes  shook  off  the  yoke  of  vas- 
salage, and  established  themselves  in  a  state  of  perfect  inde- 
pendence, the  considerable  cities  in  their  territories  made 
their  own  conditions  ;  and  instead  of  rendering  their  situation 
worse,  it  was  very  natural  that  they  should  take  hold  of  ex- 
isting circumstances,  in  order  to  secure  to  themselves  a  greater 
portion  of  freedom  and  happiness.  Their  sovereigns  cannot 
now  advance  any  plea  in  objection  to  the  terms  on  which  those 
cities  consented  to  follow  their  fortunes  and  to  acknowledge 
them  as  their  only  superiors. 

Viceroys  and  chief  governors  of  a  sovereignty  or  remote  §  61.  Minis- 
province  have  frequently  the  right  of  sending  and  receiving  ters  of  vice- 
public  ministers ;    but,  in  that  particular,  they  act  in  the roys- 
name  and  by  the  authority  of  the  sovereign  whom  they  re- 
present, and  whose  rights  they  exercise.    That  entirely  depends 
on  the  will  of  the  master  by  whom  they  are  delegated.     The 
viceroy  of  Naples,  the  governors  of  Milan,  and  the  governors- 
general  of  the  Netherlands  for  Spain,  were  invested  with  such 
power. 

The  right  of  embassy,  like  all  the  other  rights  of  sove-  § 62-  Minis- 
reignty,  originally  resides  in  the  nation  as  its  principal  and ^"^  *eof 
primitive  subject.     During  an  interregnum,  the  exercise  of  thT™gent°s 
that  right  reverts  to  the  nation,  or  devolves  on  those  whom  during  an 
the  laws  have  invested  with  the  regency  of  the  state.     They  interreg- 
may  send  ministers  in  the  same  manner  as  the  sovereign num- 

*  See  the  History  of  the  Helvetic  Confederacy,  by  M.  de  Watteville. 

573 


455  OF   THE   RIGHT   OF   EMBASSY. 

BOOK  rv.  used  to  do ;  and  these  ministers  possess  the  same  rights  as 
CHAP'  Y'  were  enjoyed  by  those  of  the  sovereign.  The  republic  of  Po- 
land sends  ambassadors  while  her  throne  is  vacant :  nor  would 
she  suffer  that  they  should  be  treated  with  less  respect  and 
consideration  than  those  who  are  sent  while  she  has  a  king. 
Cromwell  effectually  maintained  the  ambassadors  of  England 
in  the  same  rank  and  respeetability  which  they  possessed 
under  the  regal  authority. 

§  63.  Of  him      Such  being  the  rights  of  nations,  a  sovereign  who  attempts 

who  molests  £0  hin(jer  another  from  sending  and  receiving  public  ministers, 

ttw  exereue  ^oes  n™  an  inJUI75  an(*  offends  against  the  law  of  nations.  It 

of  the  right  is  attacking  a  nation  in  one  of  her  most  valuable  rights,  and 

of  embassy,  disputing  her  title  to  that  which  nature  herself  gives  to  every 

independent  society:  it  is  offering  an  insult  to  nations  in 

general,  and  tearing  asunder  the  ties  by  which  they  are 

united. 

jf  64.  What  But  this  is  to  be  understood  only  of  a  time  of  peace  :  war 
in  this?1*16  "ltroc*uces  Ot^er  rights-  &  allows  us  to  cut  off  from  an 
speet'inu'me enem7  a^  his  resources,  and  to  hinder  him  from  sending  mi- 
of  war.  nisters  to  solicit  assistance.  There  are  even  occasions  when 
we  may  refuse  a  passage  to  the  ministers  of  neutral  nations, 
who  are  going  to  our  enemy.  We  are  under  no  obligation  to 
allow  them  an  opportunity  of  perhaps  conveying  him  intelli- 
gence of  a  momentous  nature,  and  concerting  with  him  the 
means  of  giving  him  assistance,  &e.  This  admits  of  no  doubt, 
for  instance,  in  the  case  of  a  besieged  town.  No  right  can 
[  456  ]  authorize  the  minister  of  a  neutral  power,  or  any  other 
person  whatsoever,  to  enter  the  place  without  the  besieger's 
consent.  But,  in  order  to  avoid  giving  offence  to  sovereigns, 
good  reasons  rnnst  be  alleged  for  refusing  to  let  their  minis- 
ters pass ;  and  with  such  reasons  they  must  rest  satisfied,  if 
they  are  disposed  to  remain  neuter.  Sometimes  even  a  pas- 
sage is  refused  to  suspected  ministers  in  critical  and  dubious 
junctures,  although  there  do  not  exist  any  open  war.  But 
this  is  a  delicate  proceeding,  which,  if  not  justified  by  reasons 
that  are  perfectly  satisfactory,  produces  an  acrimony  that 
easily  degenerates  into  an  open  rupture. 

\  65.    The       As  nations  are  obliged  to  correspond  together,  to  attend  to 

m"nsterc)f  the  proposals  and  demands  made  to  them,  to  keep  open  a 

poweTis  to   free  an^  pa^e  channel  of  communication  for  the  purpose  of 

be  received,  mutually  understanding  each  other's  views  and  bringing  their 

disputes  to  an  accommodation,  a  sovereign  cannot,  without 

very  particular  reasons,  refuse  admitting  and  hearing  the 

minister  of  a  friendly  power,  or  of  one  with  whom  he  is  at 

peace.     But  in  case  there  be  reasons  for  not  admitting  him 

into  the  heart  of  the  country,  he  may  notify  to  him  that  he 

will  send  proper  persons  to  meet  him  at  an  appointed  place 

on  the  frontier,  there  to  hear  his  proposals.     It  then  becomes 

the  foreign  minister's  duty  to  stop  at  the  place  assigned :  it 

574 


OF   THE   RIGHT   OF   EMBASSY.  456 

is  sufficient  that  he  obtains  a  hearing;  that  being  the  utmost    BOOK  TV. 
that  he  has  a  right  to  expect. 


The  obligation,  however,  does  not  extend  so  far  as  to  in- §66.  Of  re- 
elude  that  of  suffering  at  all  times  the  residence  of  perpetual sident  mi- 
ministers,  who  are  desirous  of  remaining  at  the  sovereign's  mster8' 
court,  although  they  have  no  business  to  transact  with  him. 
It  is  natural,  indeed,  and  perfectly  conformable  to  the  senti- 
ments which  nations  ought  mutually  to  entertain  for  each 
other,  that  a  friendly  reception  should  be  given  to  those  resi- 
dent ministers,  when  there  is  no  inconvenience  to  be  appre- 
hended from  their  stay.  But  if  there  exist  any  substantial 
reason  to  the  contrary,  the  advantage  of  the  state  undoubt- 
edly claims  a  preference ;  and  the  foreign  sovereign  cannot 
take  it  amiss  if  his  minister  be  requested  to  withdraw,  when 
he  has  fulfilled  the  object  of  his  commission,  or  when  he  has 
not  any  business  to  transact.  The  custom  of  keeping  every 
where  ministers  constantly  resident  is  now  so  firmly  esta- 
blished, that  whoever  should  refuse  to  conform  to  it,  must 
allege  very  good  reasons  for  his  conduct,  if  he  wishes  to  avoid 
giving  offence.  These  reasons  may  arise  from  particular  con- 
junctures :  but  there  are  also  ordinary  reasons  ever  subsist- 
ing, and  such  as  relate  to  the  constitution  of  a  government 
and  the  state  of  a  nation.  Republics  would'  often  have  very 
good  reasons  of  the  latter  kind,  to  excuse  themselves  from 
continually  suffering  the  residence  of  foreign  ministers,  who 
corrupt  the  citizens, — gain  them  over  to  their  masters,  to  the 
great  detriment  of  the  republic, — and  excite  and  foment  par- 
ties in  the  state,  &c.  And  even  though  no  other  evil  should 
arise  from  their  presence  than  that  of  inspiring  a  nation,  ori- 
ginally plain,  frugal,  and  virtuous,  with  a  taste  for  luxury, 
the  thirst  of  gain,  and  the  manners  of  courts, — that  alone 
would  be  more  than  sufficient  to  justify  the  conduct  of  wise 
and  provident  rulers  in  dismissing  them.  The  Polish  govern-  [  457  J 
ment  is  not  fond  of  resident  ministers ;  and  indeed  their  in- 
trigues with  the  members  of  the  diet  have  furnished  but  too 
many  reasons  for  keeping  them  at  a  distance.  In  the  war  of 
1666,  a  nuncio  publicly  complained,  in  the  open  diet,  of  the 
French  ambassador's  unnecessarily  prolonging  his  stay  in 
Poland,  and  declared  that  he  ought  to  be  considered  as  a 
spy.  In  1668,  other  members  of  that  body  moved  for  a  law 
to  regulate  the  length  of  time  that  an  ambassador  should  be 
allowed  to  remain  in  the  kingdom.* 

The  greater  the  calamities  of  war  are,  the  more  it  is  in  cum-  §  67.   How 
bent  on  nations  to  preserve  means  for  putting  an  end  to  it. the  minis- 
Hence  it  becomes  necessary,  that,  even  in  the  midst  of  hosti-  *resm°f  *°e 
lities,  they  be  at  liberty  to  send  ministers  to  each  other,  for  to  be  a^. 
the  purpose  of  making  overtures  of  peace,  or  proposals  tend-mitt«d. 
ing  to  moderate  the  transports  of  hostile  rage.     It  is  true, 

*  Wickefort's  Ambassador,  b.  L  3  1. 

575 


457  OF   THE   RIGHT   OF   EMBASSY. 

BOOK  iv.  indeed,  that  the  minister  of  an  enemy  cannot  come  without 
-^  -^—  permission  ;  accordingly,  a  passport,  or  safe-conduct,  is  asked 
for  him,  either  through  the  intervention  of  some  common 
friend,  or  hy  one  of  those  messengers  who  are  protected  by 
the  laws  of  war,  and  of  whom  we  shall  speak  in  the  sequel — 
I  mean  a  trumpeter  or  drummer.  It  is  true,  also,  that,  for 
substantial  reasons,  the  safe-conduct  may  be  refused,  and  ad- 
mission denied  to  the  minister.  But  this  liberty,  which  is 
authorized  by  the  care  that  every  nation  is  bound  to  bestow 
on  her  own  safety,  is  no  bar  to  our  laying  it  down  as  a  gene- 
ral maxim,  that  we  are  not  to  refuse  admitting  and  hearing 
an  enemy's  minister ;  that  is  to  say,  that  war  alone,  and  of 
itself,  is  not  a  sufficient  reason  for  refusing  to  hear  any  pro- 
posal coming  from  an  enemy ;  but  that,  to  warrant  such  re- 
fusal, there  must  exist  some  reason  of  a  particular  nature, 
and  which  rests  upon  very  good  grounds,  as,  for  instance, 
when  an  artful  and  designing  enemy  has,  by  his  own  conduct, 
given  us  just  cause  to  apprehend  that  his  only  intention,  in 
sending  his  ministers  and  making  proposals,  is  to  disunite  the 
members  of  a  confederacy,  to  lull  them  into  security  by  hold- 
ing out  false  appearances  of  peace,  and  then  to  overpower 
them  by  surprise., 

\  68.  Whe-  Before  we  conclude  this  chapter,  it  will  be  proper  to  dis- 
ther  minis-  cusg  a  celebrated  question,  which  has  been  often  debated.  It 
received  °  '1S  as^e(^  whether  foreign  nations  may  receive  the  ambassa- 
from  or  sent  dors  and  other  ministers  of  an  usurper,  and  send  their  minis- 
to  an  usurp-  ters  to  him  ?  In  this  particular,  foreign  powers  take  for  their 
er-  rule  the  circumstance  of  actual  possession,  if  the  interest  of 

their  affairs  so  require :  and,  indeed,  there  cannot  be  a  more 
certain  rule,  or  one  that  is  more  agreeable  to  the  law  of  na- 
tions and  the  independency  of  states.  As  foreigners  have 
no  right  to  interfere  in  the  domestic  concerns  of  a  nation, 
they  are  not  obliged  to  canvass  and  scrutinize  her  conduct  in 
the  management  of  them,  in  order  to  determine  how  far  it  is 
either  just  or  unjust.  They  may,  if  they  think  proper,  sup- 
L  *5o  J  p0ge  the  right  to  be  annexed  to  the  possession.  When  a  na- 
tion has  expelled  her  sovereign,  other  powers,  who  do  not 
choose  to  declare  against  her,  and  to  risk  the  consequences 
of  her  enmity  or  open  hostility,  consider  her  thenceforward 
as  a  free  and  sovereign  state,  without  taking  on  themselves  to 
determine  whether  she  has  acted  justly  in  withdraAving  from 
her  allegiance  to  the  prince  by  whom  she  was  governed.  Car- 
dinal Mazarin  received  Lockhart,  whom  Cromwell  had  sent  as 
ambassador  from  the  republic  of  England,  and  refused  to  see 
either  King  Charles  the  Second,  or  his  ministers.  If  a  people, 
after  having  expelled  their  prince,  submit  to  another — if  they 
change  the  order  of  succession,  and  acknowledge  a  sovereign 
to  the  prejudice  of  the  natural  and  appointed  heir — foreign 
powers  may,  in  this  instance  also,  consider  what  has  been 
done  as  lawful :  it  is  no  quarrel  or  business  of  theirs.  At 

576 


OF  THE  SEVERAL  ORDERS  OF  PUBLIC  MINISTERS.  458 

the  beginning  of  the  last  century,  Charles,  Duke  of  Suder-  BOOK  iv. 
mania,  having  obtained  the  crown  of  Sweden,  to  the  preju-  CHAl>-  T- . 
dice  of  his  nephew  Sigismumd,  king  of  Poland,  was  soon 
acknowledged  by  most  sovereigns.  Villeroy,  minister  of  the 
French  monarch,  Henry  the  Fourth,  in  his  despatches  of  the 
8th  of  April,  1608,  plainly  said  to  the  president,  Jeannin, 
"•  All  these  reasons  and  considerations  shall  not  prevent  the 
king  from  treating  with  Charles,  if  he  finds  it  to  be  his  in- 
terest, and  that  of  his  kingdom."  This  remark  was  sensible 
and  judicious.  The  king  of  France  was  neither  the  judge  nor 
the  guardian  of  the  Swedish  nation,  that  he  should,  contrary 
to  the  interests  of  his  own  kingdom,  refuse  to  acknowledge 
the  king  whom  Sweden  had  chosen,  under  pretence  that  a 
competitor  had  termed  Charles  an  usurper.  Had  the  charge 
been  even  founded  in  justice,  it  was  an  affair  which  did  not 
fall  under  the  cognizance  of  foreigners. 

Therefore,  when  foreign  powers  have  received  the  minis- 
ters of  an  usurper,  and  sent  theirs  to  him,  the  lawful  prince, 
on  recovering  the  throne,  cannot  complain  of  these  measures 
as  an  injury,  nor  justly  make  them  the  ground  of  a  war,  pro- 
vided those  powers  have  not  proceeded  to  greater  lengths, 
nor  furnished  any  assistance  against  him.  But  to  acknow- 
ledge the  dethroned  prince  or  his  heir,  after  the  state  has 
solemnly  acknowledged  the  person  to  whom  the  sceptre  has 
been  transferred,  is  an  injury  done  to  the  latter,  and  a  pro- 
fession of  enmity  to  the  nation  that  has  chosen  him.  Such  a 
step,  hazarded  in  favour  of  James  the  Second's  son,  was,  by 
William  the  Third  and  the  British  nation,  alleged  as  one  of 
the  principal  reasons  of  the  war  which  England  soon  after 
declared  against  France.  Notwithstanding  all  the  caution,, 
and  all  the  protestations  of  Louis  the  Fourteenth,  his  acknow- 
ledgment of  young  Stuart,  as  king  of  England,  Scotland,  and 
Ireland,  under  the  title  of  James  the  Third,  was  considered 
by  the  English  as  an  injury  done  both  to  the  king  and  to  the 
nation. 


CHAP.  VI.  E  459  J 

OF   THE   SEVERAL  ORDERS   OF   PUBLIC  MINISTERS — OF  THE  RT8--   CHAP-  TI- 
PRESENTATIVE  CHARACTER — AND   OF  THE   HONOURS   DUE  TO 
MINISTERS. 

IN  former  days,  people  were  scarcely  acquainted  with  more  ?  69.  Origin 
than  one  order  of  public  ministers,  iii  Latin  termed  legati, of  the  seve- 
which  appellation  has  been  rendered  by  that  of  "  ambassa- 
dors."  But,  when  courts  were  become  more  proud,  and,  at 
the  same  time,  more  punctilious  in  the  article  of  ceremony, 
and  especially  when  they  had  introduced  the  idea  of  extend- 

73  2  Y  577 


459  OF  THE  SEVERAL  ORDERS 

BOOK  nr.  ing  the  minister's  representation  even  to  that  of  his  master's 
CHAP,  vi.  dignity,  jt  wag  thought  expedient  to  employ  commissioners 
of  less  exalted  rank  on  certain  occasions,  in  order  to  avoid 
trouble,  expense,  and  disputes.  Louis  the  Eleventh  of  France 
was,  perhaps,  the  first  who  set  the  example.  Thus,  several 
orders  of  ministers  being  established,  more  or  less  dignity 
was  annexed  to  their  character,  and  proportionate  honours 
were  required  for  them. 

§  70.  Repre-  Every  minister,  in  some  measure,  represents  his  master,  as 
sentative  every  agent  or  delegate  represents  his  constituent.  But  this 
B**t>  representation  relates  to  the  affairs  of  his  office :  the  minister 
represents  the  subject  in  whom  reside  the  rights  which  he  is 
to  exercise,  preserve,  and  assert — the  rights  respecting  which 
he  is  to  treat  in  his  master's  stead.  Although  such  repre- 
sentation is  admitted  in  a  general  view,  and  so  far  as  respects 
the  essence  of  affairs,  it  is  with  an  abstraction  of  the  dignity 
of  the  constituent.  In  process  of  time,  however,  princes 
would  have  ministers  to  represent  them,  not  only  in  their 
rights  and  in  the  transaction  of  their  affairs,  but  also  in  their 
dignity,  their  greatness,  and  their  pre-eminence.  It  was,  no 
doubt,  to  those  signal  occasions  of  state,  those  ceremonies  for 
which  ambassadors  are  sent,  as,  for  instance,  marriages,  that 
this  custom  owes  its  origin.  But  so  exalted  a  degree  of  dig- 
nity in  the  minister  is  attended  with  considerable  inconve- 
nience in  conducting  business,  and,  besides  occasioning 
trouble  and  embarrassment,  is  often  productive  of  difficulties 
and  disputes.  This  circumstance  has  given  birth  to  different 
orders  of  public  ministers,  and  various  degrees  of  representa- 
tion. Custom  has  established  three  principal  degrees.  What 
is,  by  way  of  pre-eminence,  called  the  representative  character, 
is  the  faculty  possessed  by  the  minister,  of  representing  his 
master  even  in  his  very  person  and  dignity. 

§  11.   Am-       The  representative  character,  so  termed  by  way  of  pre- 
rmt*0™'    eminence>  or  m  contradistinction  to  other  kinds  of  represen- 
tation, constitutes  the  minister  of  the  first  rank  the  ambas- 
sador.    It  places  him  above  all  other  ministers  who  are  not 
invested  with  the  same  character,  and  precludes  their  enter- 
ing into  competition  with  the  ambassador.     At  present  there 
are  ambassadors  ordinary  and  extraordinary :  but  this  is  no 
more  than  an  accidental  distinction,  merely  relative  to  the 
subject  of  their  mission.     Yet  almost  everywhere  some  dif- 
ference is  made  in  the  treatment  of  these  different  ambas- 
[  460  J  sadors.     That,  however,  is  purely  matter  of  custom, 
g  72.   En-        Envoys  are  not  invested  with  the  representative  character, 
voys.          properly  so  called,  or  in  the  first  degree.    They  are  ministers 
of  the  second  rank,  on  whom  their  master  was  willing  to  con- 


(192)  An   ambaMador  may  annul  a  the   event  of    his    nation    rejecting  a 

treaty,    see    authorities     collected    in  person  sent  by  the  friendly  nation  as 

1   Chitty's  Commercial  Law,  46.     la  consul,  he    is  to  assign  the    reasons, 
57S 


OF  PUBLIC   MINISTERS.  460 

fer  a  degree  of  dignity  and  respectability,  which,  without    BOOK  iv. 
being  on  a  level  with  the  character  of  an  ambassador,  im-   CHAP-  Yr- 
mediately  follows  it,  and  yields  the  pre-eminence  to  it  alone. 
There  are  also  envoys  ordinary  and  extraordinary ;   and  it 
appears  to  be  the  intention  of  princes  that  the  latter  should 
be  held  in  greater  consideration.     This  likewise  depends  on 
custom. 

The  word  resident  formerly  related  only  to  the  continu-  \  73.  Resi- 
ance  of  the  minister's  stay ;  and  it  is  frequent,  in  history, dents- 
for  ambassadors  in  ordinary  to  be  designated  by  the  simple 
title  of  residents.  But,  since  the  practice  of  employing  dif- 
ferent orders  of  ministers  has  been  generally  established,  the 
name  of  residents  has  been  confined  to  ministers  of  a  third 
order,  to  whose  character  general  custom  has  annexed  a  lesser 
degree  of  respectability.  The  resident  does  not  represent  the 
prince's  person  in  his  dignity,  but  only  in  his  affairs.  His 
representation  is  in  reality  of  the  same  nature  as  that  of  the 
envoy:  wherefore  we  often  term  him,  as  well  as  the  envoy,  a 
minister  of  the  second  order, — thus,  distinguishing  only  two 
classes  of  public  ministers,  the  former  consisting  of  ambas- 
sadors who  are  invested  with  the  representative  character  in 
pre-eminence,  the  latter  comprising  all  other  ministers  who  do 
not  possess  that  exalted  character.  This  is  the  most  neces- 
sary distinction,  and,  indeed,  the  only  essential  one. 

Lastly,  a  custom  of  still  more  recent  origin  has  introduced  g  74.  Minis- 
a  new  kind  of  ministers  without  any  particular  determination  ters' 
of  character.     These  are  called  simply  ministers,  to  indicate 
that  they  are  invested  with  the  general  quality  of  a  sove- 
reign's mandatories,  without  any  particular  assignment  of 
rank  and  character.     It  was  likewise  the  punctilio  of  cere- 
mony which  gave  rise  to  this  innovation.     Use  had  esta- 

and  request  the  appointment   of  ano-  tions.     Id.  461-2 ;  The  Caroline,  6  Rob. 

ther  consul.  Id.  55.     In  his  absence  a  Rep.  461 ;  The  Madison,  1  Edw.  R.  224. 

consul  of  his  nation   may  demand  an        As   respects   an   ambassador    or  mi-  Ambassa- 

audience    with     the    minister    of   the  nister    in    Great    Britain,    this    is   de-  dor's  privi- 

friendly   state,    (Id.     63,)    although    a  clared  and  enforced  by  7  Anne,  c.  12 ;  lege  from 

consul  has  not  the  same  privileges  as  see  the  decisions  thereon,  Chitty's  CoL  arrest. 

an  ambassador  in   other   respects,   Id.  Stat.  13 ;  Novella  v.  Togwood,  1  Barn. 

70.     The   children    of  an   ambassador  &  Ores.  554,  2  Dowl.  &  Ryl.  833,  S.  C.  ; 

and  of  his  attendants,  though  born  in  and    13    Price  Rep.  805.    And   a  ser- 

a  foreign  state,  are  considered  natural-  vant    of    a    foreign    minister,  though 

born  subjects.    Id.  110,  112.     An    am-  not  lodging  in  his  house,  is  protected 

bassador    from    a    foreign    court,    for-  by   that  act     In    re    Count    Haslang, 

merly,    could   not   come   into  England  Dick.  274.     But  a  plaintiff  xmcler  such 

•without    a    license    and    safe-conduct,  protection    of    a    foreign    ambassador 

Id.  131.      He   is  the  proper  person  to  has  been   compelled  to    give    security 

grant    a    passport.  Id.  492.    The  am-  for  costs  before  he  will  be  allowed  to 

bassador  of  an  enemy  at  a  neutral  court  proceed.     Adderly  v.  Smith,  Dick,  355. 

may  recover  and  insist  on  having  re-  But  that  act  does  not  extend  to  consult, 

stored    despatches    sent  by  a  neutral  who    are,    therefore,  liable    to    arrest. 

vessel,  and  captured  by  an  enemy ;  and  Vivearu  v.  Belcher,  3  Maule  &  Selwyn, 

he  is  peculiarly  an  object  of  the  pro-  284. — C. 

tection  and  favour  of  the  law  of  na- 

579 


460  OF  THE  SEVERAL  ORDERS 

BOOK  IT.  Wished  particular  modes  of  treatment  for  the  ambassador,  the 
CHAP.  TI.  m  enyo^  an{j  the  resident.  Disputes  between  ministers  of  the 
several  princes  often  arose  on  this  head,  and  especially  about 
rank.  In  order  to  avoid  all  contest  on  certain  occasions 
when  there  might  be  room  to  apprehend  it,  the  expedient  was 
adopted  of  sending  ministers  not  invested  with  any  one  of  the 
three  known  characters.  Hence,  they  are  not  subjected  to 
any  settled  ceremonial,  and  can  pretend  to  no  particular 
treatment.  The  minister  represents  his  master  in  a  vague 
and  indeterminate  manner,  which  cannot  be  equal  to  the  first 
degree ;  consequently  he  makes  no  demur  in  yielding  pre- 
eminence to  the  ambassador.  He  is  entitled  to  the  general 
[  461  ]  regard  due  to  a  confidential  person  intrusted  by  a  sovereign 
with  the  management  of  his  affairs ;  and  he  possesses  all  the 
rights  essential  to  the  character  of  a  public  minister.  This 
indeterminate  quality  is  such  that  the  sovereign  may  confer  it 
on  one  of  his  servants  whom  he  would  not  choose  to  invest 
with  the  character  of  ambassador ;  and,  on  the  other  hand,  it 
may  be  accepted  by  men  of  rank,  who  would  be  unwilling  to 
undertake  the  office  of  resident,  and  to  acquiesce  in  the  treat- 
ment at  present  allotted  to  men  in  that  station.  There  are 
also  ministers  plenipotentiary,  and  of  much  greater  distinction 
than  simple  ministers.  These  also  are  without  any  particular 
attribution  of  rank  and  character,  but,  by  custom,  are  now 
placed  immediately  after  the  ambassador,  or  on  a  level  with 
the  envoy  extraordinary. 

g  75.  Con-  We  have  spoken  of  consuls  in  treating  of  commerce 
(?ook  IL  §  3f)  Formerly,  agents  were  a  kind  of  public  mi- 
Bisters :  but  in  the  present  increase  and  profusion  of  titles, 
sioners,  Ac.  this  is  given  to  persons  simply  appointed  by  princes  to  trans- 
(193)  act  their  private  affairs,  and  who  not  unfrequently  are  sub- 

jects of  the  country  where  they  reside.  They  are  not  public 
ministers,  and  consequently  not  under  the  protection  of  the 
law  of  nations.  But  a  more  particular  protection  is  due  to 
them  than  to  other  foreigners  or  citizens,  and  likewise  some 
attention  in  consideration  of  the  prince  whom  they  serve.  If 
that  prince  sends  an  agent  with  credentials  and  on  public  bu- 
siness, the  agent  thenceforward  becomes  a  public  minister ; 
his  title  making  no  difference  in  the  case.  The  same  remark 
is  also  applicable  to  deputies,  commissioners,  and  others  in- 
trusted with  the  management  of  public  affairs. 

g  76.  Ore-  Among  the  several  characters  established  by  custom,  it 
dentiais.  rests  with  the  sovereign  to  determine  with  what  particular 
one  he  chooses  to  invest  his  minister ;  and  he  makes  known 
the  minister's  character  in  the  credentials  which  he  gives  him 
for  the  sovereign  to  whom  he  sends  him.  Credentials  are  the 
instrument  which  authorizes  and  establishes  the  minister  in 
his  character  with  the  prince  to  whom  they  are  addressed. 

(193)  Ante,  147  and  459. 
530 


OF   PUBLIC   MINISTERS.  461 

If  that  prince  receives  the  minister,  he  can  receive  him  only    BOOK  iv. 
in  the  quality  attributed  to  him  in  his  credentials.     They  are,   CHAP<  VI' 
as  it  were,  his  general  letter  of  attorney,  his  mandate  patent, 
mandatum 


The  instructions  given  to  the  minister  contain  his  master's  g  77.  in- 
secret  mandate,  the  orders  to  which  the  minister  must  carefully  structions. 
conform,  and  which  limit  his  powers.  Here  we  might  apply 
all  the  rules  of  the  law  of  nature  respecting  procurations  and 
mandates,  whether  open  or  secret.  But  exclusive  of  their 
being  more  particularly  applicable  to  the  subject  of  treaties, 
we  may  with  the  less  impropriety  dispense  with  such  details 
in  this  work,  as  the  custom  has  wisely  been  established,  that 
no  engagements  into  which  a  minister  may  enter,  shall 
have  any  validity  between  sovereigns,  unless  ratified  by  his 
principal. 

We  have  seen  above  that  every  sovereign,  every  commu-  1  78.  Right 
nity,  and  even  every  individual,  who  has  a  right  to  treat  with  of  sendins 


foreign  powers,  has  also  that  of  sending  ambassadors. 

the  preceding  chapter.)     The  question  admits  of  no  difficulty, 

so  far  as  respects  simple  ministers  or  mandatories,  considered 

in  general  as  persons  intrusted  with  the  affairs,  and  vested  [  462  ] 

with  the  powers,  of  those  who  have  a  right  to  treat.     Further, 

the   ministers   of  every   sovereign   are,   without   hesitation, 

allowed  to  enjoy  all  the  rights  and  prerogatives  belonging  to 

ministers  of  the  second  order.     Powerful  monarchs,  indeed, 

deny  to  some  petty  states  the  right  of  sending  ambassadors  : 

but  let  us  see  with  what  reason.     According  to  the  generally 

established  custom,  the  ambassador  is  a  public  minister,  re- 

presenting the  person  and  dignity  of  a  sovereign;  and,  as 

this  representative  character  procures  him  particular  honours, 

great  princes  are  therefore  unwilling  to  admit  the  ambas- 

sador of  an  inconsiderable  state,  from  a  repugnance  to  pay- 

ing him  honours  of  so  distinguished  a  kind.     But  it  is  mani- 

fest that  every  sovereign  has  an  equal  right  of  causing  himself 

to  be  represented  in  the  first  as  well  as  in  the  second  or  the 

third  degree  :  and  the  sovereign  dignity  is  entitled   to  dis- 

tinguished respect  in  the  great  society  of  nations.     We  have 

shown  (Book  II.  Ch.  III.)  that  the  dignity  of  independent  na- 

tions is  essentially  the  same  :  that  a  sovereign  prince,  how- 

ever low  he  may  rank  in  the  scale  of  power,  is  as  completely 

sovereign  and  independent  as  the  greatest  monarch,  in  the 

same  manner  as  a  dwarf  is  a  man  equally  with  a  giant: 

although,  indeed,  the  political  giant  makes  a  more  conspicu- 

ous figure  in  the  general  society  than  the  dwarf,  and  has,  on 

that  account,  a  greater  portion  of  respect  and  more  signal 

honours  paid  to  him.     It  is  evident,  then,  that  every  prince, 

every  state,  truly  possessed  of  sovereignty,  has  a  right  to 

send  ambassadors,  and  that  to  contest  their  right  in  this  in- 

stance is  doing  them  a  very  great  injury  ;  it  is,  in  fact,  con- 

testing their  sovereign  dignity.     And  if  they  have  that  right, 

2r2  581 


462  OF  THE  SEVERAL  ORDERS 

BOOK  iv.  their  ambassadors  cannot  be  refused  those  regards  and  ho- 
CHAP.  vi.  nourg  which  custom  particularly  assigns  to  the  representative 
of  a  sovereign.  The  king  of  France  admits  no  ambassadors 
from  the  princes  of  Germany,  as  refusing  to  their  ministers 
the  honours  annexed  to  the  first  degree  of  representation ; 
yet  he  receives  ambassadors  from  the  princes  of  Italy.  The 
reason  alleged  for  this  conduct>is  that  he  considers  the  latter 
to  be  more  perfectly  sovereign  princes  than  the  former,  be- 
cause, though  equally  vassals  of  the  emperor'  and  the  empire, 
they  are  not  equally  dependent  on  the  imperial  authority. 
The  emperors,  nevertheless,  claim  the  same  rights  over  the 
princes  of  Italy,  as  over  those  of  Germany.  But  France, 
seeing  that  the  former  do  not  actually  constitute  a  part  of 
the  Germanic  body,  nor  assist  at  the  diets,  countenances 
their  absolute  independence,  in  order  as  much  as  possible  to 
detach  them  from  the  empire. 

I  shall  not  here  enter  into  a  detail  of  the  honours  due  and 
actually  paid  to  ambassadors :  these  are  matters  which  alto- 
gether depend  on  institution  and  custom :  I  shall  only 
observe,  in  general,  that  they  are  entitled  to  those  civilities 
and  distinctions  which  usage,  and  the  prevailing  manners  of 
the  time,  have  pointed  out  as  proper  expressions  of  the  re- 
spect due  to  the  representative  of  a  sovereign.  And  it  must 
be  observed  here,  with  regard  to  things,  of  institution  and 
[  463  ]  custom,  that,  when  a  practice  is  so  established,  as  to  impart, 
according  to  the  usages  and  manners  of  the  age,  a  real  value 
and  a  settled  signification  to  things  which  are  in  their  own 
nature  indifferent,  the  natural  and  necessary  laAV  of  nations 
requires  that  we  should  pay  deference  to  such  institution, 
and  act,  with  respect  to  such  things,  in  the  same  manner  as 
if  they  really  possessed  all  that  value  which  the  opinion  of 
mankind  has  annexed  to  them.  For  instance,  according  to 
the  general  usage  of  all  Europe,  it  is  the  peculiar  prerogative 
of  an  ambassador  to  wear  his  hat  in  presence  of  the  prince  to 
whom  he  is  sent.  This  right  expresses  that  he  is  acknow- 
ledged as  the  representative  of  a  sovereign :  to  refuse  it, 
therefore,  to  the  ambassador  of  a  state  which  is  truly  inde- 
pendent, would  be  doing  an  injury  to  that  state,  and,  in  some 
measure,  degrading  it.  The  Switzers,  who  formerly  were 
much  deeper  adepts  in  the  art  of  war  than  in  the  etiquette  of 
courts,  and  far  from  being  punctilious  on  the  score  of  mere 
ceremony,  have,  on  some  occasions,  submitted  to  be  treated 
in  a  manner  unbecoming  the  dignity  of  their  nation.  In 
1663,  their  ambassadors  suffered  the  king  of  France,  and  the 
nobles  of  his  court,  to  refuse  them  those  honours  which  cus- 
tom has  rendered  essential  to  the  ambassadors  of  sovereigns, 
and  particularly  that  of  being  covered  before  the  king  at  their 
audience.*  Some  of  their  number,  who  knew  better  what 

*  In  Wicquefort,  may  be  seen  a  particular  account  of   tho  whole  trans- 
582 


OF  PUBLIC   MINISTERS.  463 

they  owed  to  the  glory  of  their  republic,  strongly  insisted  on  BOOK  IT. 
that  essential  and  distinctive  honour ;  but  the  opinion  of  the  CHAP'  YI' 
majority  prevailed,  and  at  length  they  all  yielded,  on  being 
assured  that  the  ambassadors  of  their  nation  had  not  worn 
their  hats  in  presence  of  Henry  the  Fourth.  Allowing  the 
fact  to  have  been  true,  the  argument  was  not  unanswerable. 
The  Switzers  might  have  replied,  that  in  Henry's  time  their 
nation  was  not  yet  solemnly  acknowledged  free  and  inde- 
pendent of  the  empire,  as  it  had  lately  been  by  the  treaty  of 
Westphalia  in  1648.  They  might  have  said,  that,  although 
their  predecessors  had  not  been  duly  attentive  to  support  the 
dignity  of  their  sovereigns,  that  gross  error  could  not  impose 
on  their  successors  any  obligation  to  commit  a  similar  one. 
At  present,  as  the  nation  is  more  enlightened,  and  more 
attentive  to  points  of  that  nature,  she  will  not  fail  to  support 
her  dignity  in  a  more  becoming  manner.  Whatever  extra- 
ordinary honours  may,  in  other  respects,  be  paid  to  her 
ambassadors,  she  will  not,  in  future,  suffer  herself  to  be  so  far 
blinded  by  those  empty  marks  of  distinction,  as  to  overlook 
that  peculiar  prerogative  which  custom  has  rendered  essential. 
When  Louis  the  Fifteenth  visited  Alsace,  in  1744,  the  Helvetic 
body  declined  sending  ambassadors  to  compliment  him  accord- 
ing to  custom,  until  informed  whether  they  would  be  allowed 
to  wear  their  hats :  and  on  the  refusal  of  that  just  demand,  [  464  ] 
none  were  sent.  Switzerland  may  reasonably  hope  that  his 
most  Christian  majesty  will  no  longer  insist  on  a  claim  which 
does  not  enhance  the  lustre  of  his  crown,  and  can  only  serve 
to  degrade  an  ancient  and  faithful  ally. 


CHAP.  VII. 

OF  THE   BIGHTS,    PRIVILEGES,    AND   IMMUNITIES   OF   AMBAS-     CHAP.  TII. 
SADORS   AND   OTHER   PUBLIC   MINISTERS.  (194) 

THE  respect  which  is  due  to  sovereigns  should  redound  to  ? 80-   Re- 
their  representatives,  and  especially  their  ambassadors,    as spec* due !to 
representing  their  master's  person  in  the  first  degree.     Who-^1^1111" 
ever  offends  and  insults  a  public  minister  commits  a  crime  the  (195)  '  . 
more  deserving  of  severe  punishment,  as  he  might  thereby 
involve  his  country  and  his  sovereign  in  very  serious  diffi- 
culties and  trouble.     It  is  just  that  he  should  be  punished  for 
his  fault,  and  that  the  state  should,  at  the  expense  of  the  de- 
action.     That  writer    is  justifiable  in    nation     by    coarsely    asserting    that 
expressing    a    degree    of    indignation    "they     prefer     money     to     honour." 
against  the  Swiss  ambassadors ;  but  he    Ambassador,  book   i.    g   19.     See   also 
ought  not  to   have  insulted  the  whole    18. 

(194)  See  Wicquefort's  Ambassadors,        (195)  Ante,  p.  459,  n. 
per  tot. — C. 

583 


464  OF   RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.  linquent,  give  full  satisfaction  to  the  sovereign  who  has  been 
CHAP,  vn.  Offen(jeci  jn  the  person  of  his  minister.  If  the  foreign  minis- 
ter is  himself  the  aggressor,  and  offends  a  citizen,  the  latter 
may  oppose  him  without  ^departing  from  the  respect  due  to 
the  character  which  the  offender  bears,  and  give  him  a  lesson 
which  shall  both  efface  the  stain  of  the  outrage,  and  make  the 
author  of  it  blush  for  his  misqonduct.  The  person  offended 
may  further  prefer  a  complaint  to  his  own  sovereign,  who  will 
demand  for  him  an  adequate  satisfaction  for  the  minister's 
master.  The  great  concerns  of  the  state  forbid  a  citizen,  on 
such  occasions,  to  entertain  those  thoughts  of  revenge  which 
the  point  of  honour  might  suggest,  although  they  should  in 
other  respects  be  deemed  allowable.  Even  according  to  the 
maxims  of  the  world,  a  gentleman  is  not  disgraced  by  an 
affront  for  which  it  is  not  in  his  own  power  to  procure  satis- 
faction. 

g  81.  Their  The  necessity  and  right  of  embassies  being  established 
persons  sa-  (gee  Chap.  V.  of  this  Book),  the  perfect  security  and  inviola- 
cred  and  foUtj  Of  ambassadors,  and  other  ministers,  is  a  certain  con- 

inviolable.  »  ,,  .         ,,         .,,     ,     .  ,  .    j    *• 

(196)  sequence  of  it :  for,  if  their  persons  be  not  protected  from 

violence  of  every  kind,  the  right  of  embassy  becomes  preca- 
rious, and  the  success  very  uncertain.  A  right  to  the  end 
inseparably  involves  a  right  to  the  necessary  means.  Embas- 
sies, then,  being  of  such  great  importance  in  the  universal 
society  of  nations,  and  so  necessary  to  their  common  well- 
being,  the  persons  of  ministers  charged  with  those  embassies 
are  to  be  held  sacred  and  inviolable  among  all  nations.  (See 
Book  II.  §  218.)  Whoever  offers  violence  to  an  ambassador, 
or  to  any  other  public  minister,  not  only  injures  the  sovereign 
whom  that  minister  represents,  but  also  attacks  the  common 

[  465  ]  safety  and  well-being  of  nations:  he  becomes  guilty  of  an 
atrocious  crime  against  mankind  in  general. 

(196)  Ante,  p.  459,  n. — C.  the  sultan  for  this  barbarous  massacre; 

*  An  enormous  infraction  of  the  and,  finding  him  backward  to  give  it, 
law  of  nations  caused  the  ruin  of  the  he  took  up  arms.  The  conquest  of 
powerful  empire  of  Khovarezm,  or  the  whole  empire  of  Khovarezm  soon 
Kakesm,  and  opened  a  door  to  the  followed;  and  Mohammed  himself,  re- 
Tartars  for  the  subjugation  of  almost  duced  to  the  condition  of  a  wretched 
all  Asia.  The  famous  Gengis-khan,  fugitive,  died  of  a  broken  heart  in  a 
wishing  to  establish  a  commercial  in-  desert  island  of  the  Caspian  Sea. 
tercourse  hetween  his  states  and  those  Canson,  the  last  sultan  of  the  Mam- 
of  Persia,  and  the  other  provinces  sub-  melucs,  having  put  to  death  the  am- 
ject  to  Mohammed  Cotheddin,  sultan  bassadors  of  the  Turkish  emperor, 
of  Khovarezm,  sent  to  that  prince  an  Selim  the  First,  the  injured  monarch 
ambassador,  accompanied  by  a  caravan  took  a  signal  vengeance  for  the  atro- 
of  merchants.  On  the  arrival  of  that  cious  deed.  He  conquered  all  the  do- 
caravan  at  Otraw,  the  governor  caused  minions  of  Canson,  and,  having  de- 
them  to  be  arrested,  together  with  the  feated  and  captured  that  prince  near 
ambassador,  and  wrote  word  to  the  Cairo,  he  caused  him  to  be  hanged 
Sultan  that  they  were  a  company  of  at  one  of  the  gates  of  the  city.  Ma- 
spies.  Mohammed  thereupon  ordered  rigny,  History  of  the  Arabs,  vol.  ii.  p. 
him  to  have  the  prisoners  put  to  death.  105,  427. 
Gengis-khan  demanded  satisfaction  of 


IMMUNITIES   OF  AMBASSADORS,    ETC.  465 

This  safety  is  particularly  due  to  the  minister,  from  the    BOOK  IT. 
sovereign  to  whom  he  is  sent.     To  admit  a  minister,  to  an-  CHAP-  *TU 
knowledge  him  in  such  character,  is  engaging  to  grant  him  I  82-  Parti- 
the  most  particular  protection,  and  that  he  shall   enjoy  all  cula.r  pr°' 

•11  f  T      •  •    j      j      a.1-    j.    J.-L  J.  J      .    tection  due 

possible  safety.  It  is  true,  indeed,  that  the  sovereign  is  to  them> 
bound  to  protect  every  person  within  his  dominions,  whether  (197) 
native  or  foreigner,  and  to  shelter  him  from  violence :  but 
this  attention  is  in  a  higher  degree  due  to  a  foreign  minister. 
An  act  of  violence  done  to  a  private  person  is  an  ordinary 
transgression,  which,  according  to  circumstances,  the  prince 
may  pardon  :  but  if  done  to  a  public  minister,  it  is  a  crime  of 
state,  an  offence  against  the  law  of  nations ;  and  the  power 
of  pardoning,  in  such  case,  does  not  rest  with  the  prince  in 
whose  dominions  the  crime  has  been  committed,  but  with  him 
who  has  been  offended  in  the  person  of  his  representative. 
However,  if  the  minister  has  been  insulted  by  persons  who 
were  ignorant  of  his  character,  the  offence  is  wholly  uncon- 
nected with  the  law  of  nations,  and  falls  within  the  class  of 
ordinary  transgressions.  A  company  of  young  rakes,  in  a 
town  of  Switzerland,  having,  in  the  night-time,  insulted  the 
British  minister's  house,  without  knowing  who  lived  in  it,  the 
magistracy  sent  a  message  to  the  minister  to  know  what  satis- 
faction he  required.  He  prudently  answered,  that  it  was  the 
magistrates'  concern  to  provide  for  the  public  safety  by  such 
means  as  they  thought  best ;  but  that,  as  to  his  own  part,  he 
required  nothing,  not  thinking  himself  affronted  by  persons 
who  could  have  had  no  design  against  him,  as  not  knowing 
his  house.  Another  particular  circumstance,  in  the  protec- 
tion due  to  foreign  ministers,  is  this : — according  to  the  de- 
structive maxims  introduced  by  a  false  point  of  honour,  a  sove- 
reign is  under  a  necessity  of  showing  indulgence  to  a  person 
wearing  a  sword,  who  instantly  revenges  an  affront  done  to 
him  by  a  private  individual :  but  violent  proceedings  against 
a  public  minister  can  never  be  allowed  or  excused,  unless  [  466  ] 
where  the  latter  has  himself  been  the  aggressor,  and,  by  using 
violence  in  the  first  instance,  has  reduced  his  opponent  to  the 
necessity  of  self-defence. 

Though  the  minister's  character  is  not  displayed  in  its  full  §  83.  when 
extent,  and  does  not  thus  insure  him  the  enjoyment  of  all  his  it  coin- 
rights,  till  he  is  acknowledged  and  admitted  by  the  sovereign, mences- 
to  whom  he  delivers  his  credentials, — yet,  on  his  entering  the 
country  to  which  he  is  sent,  and  making  himself  known,  he  is 
under  the  protection  of  the  law  of  nations;  otherwise,  it  would 
not  be  safe  for  him  to  come.     Until  he  has  had  his  audience 
of  the  prince,  he  is,  on  his  own  word,  to  be  considered  as  a 
minister ;  and  besides,  exclusive  of  the  notice  of  his  mission, 

(197)  See  also  the  case  of  the  arrest    12.     See  recital  in  act,  and  1  Bla.  Com. 
of  the  Russian   ambassador,  which  oc-    250,  and  ante,  459,  note. — C. 
casioned  the  passing  of  the  7  Anne,  c. 

74  585 


466  OF   RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.    usually  given  by  letter,  the  minister  has,  in  case  of  doubt,  his 
CHAP,  vii.  paggp0rts  to  produce,  which  will  sufficiently  certify  his  cha- 
racter. 

%  84.  What  These  passports  sometimes  become  necessary  to  him  in  the 
is  due  to  countries  through  which  he  passes  on  his  way  to  the  place  of 
countries  n*s  destination ;  and,  in  case  of  need,  he  shows  them,  in  order 
through  to  obtain  the  privileges  to  which  he  is  entitled.  It  is  true, 
which  they  indeed,  that  the  prince  alone  to  whom  the  minister  is  sent,  is 
paas.  under  any  obligation,  or  particular  engagement  to  insure  him 

the  enjoyment  of  all  the  rights  annexed  to  his  character.  Yet 
the  others  through  whose  dominions  he  passes  are  not  to  deny 
him  those  regards  to  which  the  minister  of  a  sovereign  is  en- 
titled, and  which  nations  reciprocally  owe  to  each  other.  In 
particular  they  are  bound  to  afford  him  perfect  security.  To 
insult  him  would  be  injuring  his  master,  and  the  whole  nation 
to  which  he  belongs :  to  arrest  him,  and  offer  him  violence, 
would  be  infringing  the  right  of  embassy,  which  belongs  to 
all  sovereigns  (§§  57 — 63).  The  French  monarch,  Francis 
the  First,  had  therefore  very  good  reason  to  complain  of  the 
murder  of  his  ambassadors,  Rincon  and  Fregose,  as  an  atro- 
cious violation  of  public  faith  and  the  law  of  nations.  Those 
two  ministers,  the  one  destined  for  Constantinople,  the  other 
for  Venice,  having  embarked  on  the  Po,  were  stopped  and 
murdered ;  and,  according  to  all  appearances,  the  deed  had 
been  perpetrated  by  order  of  the  governor  of  Milan.*  The 
emperor  Charles  the  Fifth,  having  taken  no  pains  to  discover 
the  persons  concerned  in  the  murder,  authorized  a  belief  that 
he  had  himself  ordered  it,  or  at  least  that  he  tacitly  approved 
of  the  act  after  its  commission.  And,  as  he  did  not  give  any 
suitable  satisfaction  for  it,  Francis  had  a  very  just  cause  for 
declaring  war  against  him,  and  even  calling  for  the  assistance 
of  all  other  nations :  for  an  affair  of  this  nature  is  not  a  pri- 
vate dispute,  a  doubtful  question,  in  which  each  party  pre- 
tends to  have  justice  on  his  side :  it  is  a  quarrel  which  in- 
volves the  concern  of  all  nations,  since  they  are  all  equally 
interested  in  maintaining  the  sacred  inviolability  of  that 
right,  and  of  those  means  which  enable  them  to  hold  com- 
[  467  ]  munication  with  each  other,  and  to  treat  of  their  affairs.  If 
an  innocent  passage,  and  even  perfect  security  are  due  to  a 
private  individual,  much  more  are  they  due  to  the  minister 
of  a  sovereign,  who  is  going  to  execute  his  master's  orders, 
and  who  travels  on  the  affairs  of  a  nation.  I  say,  "  an  in- 
nocent passage ;"  for  the  minister's  journey  is  justly  sus- 
pected, if  a  sovereign  has  reason  to  apprehend  that  he  will 
make  an  improper  use  of  the  liberty  granted  him  of  entering 
his  territories,  by  plotting  against  his  interests  while  in  the 
country,  or  that  he  is  going  to  convey  intelligence  to  his  ene- 
mies, or  to  stir  up  others  against  him.  We  have  already 

*  Memoires  de  Martin  du  Bellay,  liv.  ix. 
586 


IMMUNITIES   OF  AMBASSADORS,    ETC.  467 

said  (§  64)  that  he  may  in  such  case  refuse  him  a  passage  :  BOOK  iv. 
but  he  is  not  to  maltreat  him,  nor  suffer  any  violence  to  be  ,  CHAP-  Tu-. 
offered  to  his  person.  If  he  has  not  reason  sufficient  for  de- 
nying him  a  passage,  he  may  take  precautions  against  the 
abuse  which  the  minister  might  make  of  it.  These  maxims 
the  Spaniards  found  established  in  Mexico  and  the  neigh- 
bouring provinces.  In  those  countries,  ambassadors  were 
respected  throughout  their  whole  journey  :  but  they  could 
not  deviate  from  the  high  road  without  forfeiting  their 
rights  :*  —  a  prudent  and  judicious  reservation,  introduced 
as  a  guard  against  the  admission  of  spies  under  the  name 
of  ambassadors.  Thus,  while  the  negotiations  for  peace 
were  carried  on  at  the  famous  congress  of  Westphalia,  amid 
the  dangers  of  war  and  the  din  of  arms,  the  several  couriers 
sent  or  received  by  the  plenipotentiaries  had  each  his  particu- 
lar route  designated;  and,  out  of  the  prescribed  tract,  his 
passport  could  afford  him  no  protection,  f 

What  we  have  here  observed  relates  to  nations  that  are  |  85.  Am- 
at  peace  with  each  other.  On  the  breaking  out  of  a  war,  we  bassadors 
cease  to  be  under  any  obligation  of  leaving  the  enemy  in  the  going  ^°  an 
free  enjoyment  of  his  rights:  on  the  contrary,  we  are  justi-  Country. 
fiable  in  depriving  him  of  them,  for  the  purpose  of  weakening 
him,  and  reducing  him  to  accept  of  equitable  conditions. 
His  people  may  also  be  attacked  and  seized  wherever  we 
have  a  right  to  commit  acts  of  hostility.  Not  only,  there- 
fore, may  we  justly  refuse  a  passage  to  the  ministers  whom 
our  enemy  sends  to  other  sovereigns  ;  we  may  even  arrest 
them  if  they  attempt  to  pass  privately,  and  without  permis- 
sion, through  places  belonging  to  our  jurisdiction.  Of  such 
proceeding  the  last  war  furnishes  a  signal  instance.  A 
French  ambassador,  on  his  route  to  Berlin,  touched,  through 
the  imprudence  of  his  guides,  at  a  village  within  the  electo- 
rate of  Hanover,  whose  sovereign,  the  king  of  England,  was 
at  war  with  France.  The  minister  was  there  arrested  and 
afterwards  sent  over  to  England.  As  his  Britannic  ma- 
jesty had  in  that  instance  only  exerted  the  rights  of  war, 
neither  the  court  of  France  nor  that  of  Prussia  complained 
of  his  conduct. 

The  reasons  which  render  embassies   necessary,  and  am-  §  86- 
bassadors  sacred  and  inviolable,  are  not  less  cogent  in  time  bas 

,,  ,  •  f        j  s\         i  t  twe 

oi  Avar,  than  in  prolound  peace.     On  the  contrary,  the  ne-miea- 

cessity  and  indispensable  duty  of  preserving  some  resource 

by  which  the  minds  of  the  belligerent  parties  may  be  brought  [  468  ] 

to  a  mutual  understanding,  and  peace  be  restored,  is  a  fresh 

reason  why  the  persons  of  ministers,  as  instruments  in  the 

preliminary  conferences  and  final  reconciliation,  should  be 

still  more  sacred  and  inviolable.     Nomen  legati,  says  Cicero, 

*  Solis's  history  of  the  Conquest  of  Mexico.     §  17. 
|  Wicquefort's  Ambassador,  book  i.  g  1. 

537 


bassies  be~ 

en  ene- 


468 


BOOK   IV. 
CHAP.   VII. 


\  87.  He- 
ralds, trum- 
peters,  and 
drummers. 


§88.     Mi- 
nisters, 
trumpeters, 
Ac.,  to  b« 
respected, 
even  in  a 
civil  war. 

[469] 


OF   RIGHTS,    PRIVILEGES,    AND 

ejusmodi  esse  debet,  quod,  non  modo,  inter  sociorum  jura,  sed 
etiam  inter  hostium  tela,  incolume  versetur.*  Accordingly, 
one  of  the  most  sacred  laws  of  war  is  that  which  insures  per- 
fect security  to  persons  who  bring  messages  or  proposals 
from  the  enemy.  It  is  true,  indeed,  that  the  ambassador  of 
an  enemy  must  not  approach  without  permission :  and  as 
there  does  not  always  exist  a  convenient  opportunity  of  ob- 
taining such  permission  through  the  medium  of  neutral  per- 
sons, the  defect  has  been  supplied  by  the  establishment  of 
certain  privileged  messengers  for  carrying  proposals  from 
enemy  to  enemy,  in  perfect  safety. 

The  privileged  messengers  I  allude  to  are  heralds,  trum- 
peters, and  drummers,  who,  from  the  moment  they  make 
themselves  known,  and  as  long  as  they  confine  themselves 
within  the  terms  of  their  commission,  are,  by  the  laws  of  war 
and  those  of  nations,  considered  as  sacred  and  inviolable. 
This  regulation  is  absolutely  necessary ;  for,  exclusive  of  the 
duty  incumbent  on  us  to  reserve  the  means  of  restoring  peace 
(as  above  mentioned),  there  occur,  even  during  the  course  of 
the  war,  a  thousand  occasions,  when  the  common  safety  and 
advantage  of  both  parties  require  that  they  should  be  able 
to  send  messages  and  proposals  to  each  other.  The  insti- 
tution of  heralds  succeeded  that  of  the  Roman  feciales :  at 
present,  however,  they  are  seldom  employed :  drummers  or 
trumpeters  are  sent,  and  after  them,  according  to  the  exi- 
gence of  the  occasion,  ministers,  or  officers  furnished  with 
powers.  Those  drummers  and  trumpeters  are  held  sacred 
and  inviolable ;  but  they  are  to  make  themselves  known 
by  the  marks  peculiar  to  them.  (198)  Maurice,  prince  of 
Orange,  highly  resented  the  conduct  of  the  garrison  of 
Ysendick,  who  had  fired  at  his  trumpeter  :f  on  which  occa- 
sion the  prince  observed  that  no  punishment  can  be  too 
severe  for  those  who  violate  the  law  of  nations.  Other  in- 
stances may  be  seen  in  Wicquefort,  and  particularly  the  repa- 
ration which  the  duke  of  Savoy,  as  general  of  Charles  the 
Fifth's  army,  caused  to  be  made  to  a  French  trumpeter,  who 
had  been  dismounted  and  despoiled  by  some  German 
soldiers,  f 

In  the  wars  of  the  Netherlands  the  duke  of  Alva  hanged 
up  a  trumpeter  belonging  to  the  prince  of  Orange,  saying 
that  he  was  not  obliged  to  allow  safety  to  a  trumpeter  sent 
him  by  the  chief  of  the  rebels,  f  On  this,  as  on  many  other 
occasions,  that  sanguinary  general  was  undoubtedly  guilty 
of  a  flagrant  violation  of  the  laws  of  war,  which,  as  we  have 
proved  above  (Book  III.  Chap.  XVIII.),  ought  to  be  ob- 
served even  in  civil  wars :  for,  unless  both  parties  can  with 
perfect  safety  interchange  messages,  and  reciprocally  send 


*  In  Verrero,  orat.  L  ( 198)  But  see  Msop'a  Fables.— C. 

|  Wicquefort,  book  L  §  3. 


.       IMMUNITIES   OF  AMBASSADORS,   ETC.  469 

confidential  persons  to  each  other,  how  can  they,  on  those  BOOK  IT. 
unfortunate  occasions,  ever  come  to  talk  of  peace  ?  What  CHAP-  Y"-, 
channel  remains  open  for  negotiating  a  salutary  accommo- 
dation ?  The  same  duke  of  Alva,  in  the  war  which  the 
Spaniards  afterwards  made  on  the  Portuguese,  whom  they 
also  termed  rebels,  caused  the  governor  of  Cascais  to  be 
hanged  for  having  given  orders  to  fire  on  a  trumpeter  sent  to 
demand  a  surrender  of  the  town.*  In  a  civil  war,  or  when 
a  prince  takes  up  arms  for  the  purpose  of  subduing  a  body 
of  people  who  think  themselves  absolved  from  their  allegiance 
to  him,  an  attempt  to  compel  the  enemies  to  respect  the  laws 
of  war,  while  he  himself  does  not  observe  them  on  his  own 
part,  is  in  fact  equal  to  a  determined  resolution  of  carrying 
those  wars  to  the  extreme  of  cruelty,  and  converting  them 
into  a  scene  of  inordinate  and  endless  murder,  by  the  long 
series  of  mutual  retaliations  which  will  naturally  ensue. 

But,  as  a  prince,  when  influenced  by  substantial  reasons,  §  89.  Some- 
may  refuse  to  admit  and  listen  to  ambassadors,  in  like  man-  times  they 
ner  the  general  of  an  army,  or  any  other  commander,  is  not  £aaydbed^-t 
always  obliged  to  permit  the  approach  of  a  trumpeter  or  t™*e  */w9) 
drummer,  and  to  give  him  a  hearing.     If,  for  instance,  the 
governor  of  a  besieged  town  is  apprehensive  that  a  summons 
to  surrender  may  intimidate  the  garrison,  and  excite  prema- 
ture ideas  of  capitulation,  he  undoubtedly  may,  on  seeing 
the  trumpeter  advance,  send  him  orders  to  retire,  informing 
him  that  if  he  comes  a  second  time  on  the  same  errand  and 
without  permission,  he  shall  be  fired  upon.     This  conduct  is 
no  violation  of  the  laws  of  war :  but  such  a  mode  of  proceed- 
ing ought  not  to  be  adopted  without  very  cogent  reasons, 
because,  by  irritating  the  besiegers,  it  exposes  the  garrison 
to  be  treated  by  them  with  the  extreme  of  rigour,  untem- 
pered  with  mercy  or  moderation.     To  refuse  to  hear  a  trum- 
peter's message  without   alleging  a  substantial   reason  for 
the  refusal,  is  equivalent  to  a  declaration  that  the  party  is 
determined  to  presevere  in  irreconcilable  hostility. 

Whether  we  admit  or  refuse  to  hear  a  herald  or  a  trum-  ?  90.  Every 
peter,  we  ought  carefully  to  avoid  every  thing  which  might  thins  which 
wear  the  appearance  of  an  insult  offered  to  him.     Not  only  p^rlnc^  o~f 
does  the  law  of  nations  claim  that  respect,  but  prudence  insuit  to 
moreover  recommends  such  caution  and  delicacy.     In  1744,  them  must 
the  Bailly  de  Givry  sent  a  trumpeter,  with  an  officer,  to  sum- be  avoided, 
mon  the  redoubt  of  Pierrelonge  in  Piedmont.     The  Savoyard  [  470  ] 
officer  who  commanded  in  the  redoubt,  a  brave  man,  but  of 
a  blunt  and  fiery  disposition,  feeling  his  indignation  roused 
by  a  summons  to  surrender  a  post  which  he  deemed  tenable 
and  secure,  returned  an  insulting  answer  to  the  French  gene- 
ral.    The  officer  to  whom  the  answer  was  given,  judiciously 

*  Wicquefort,  book  i.  21  b.;  4  Inst  155;  2  Inst  57;  1  Chit- 

(199)  See  also  Calvin's  case,  7  Coke,    ty's  Com.  L.  131.— C. 

2Z  589 


470  OF   RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.  took  advantage  of  the  circumstance,  and  delivered  it  to  the 
CHAP-  Yir-  Bailly  de  Givry  in  the  hearing  of  the  French  troops.  It  set 
them  in  a  flame ;  and  their  native  valour  being  stimulated 
by  the  eager  desire  of  avenging  an  affront,  their  impetuosity 
was  irresistible :  though  the  attack  was  attended  with  con- 
siderable carnage,  the  losses  they  sustained  only  added  fresh 
fuel  to  their  courage,  till  at  length  they  carried  the  redoubt : 
and  thus  the  imprudent  commandant  was  accessary  to  his  own 
death,  the  slaughter  of  his  men,  and  the  loss  of  his  post. 
§  91.  By  and  The  prince,  the  general  of  the  army,  and  every  corn- 
to  whom  mander-in-chief  within  his  department,  have  alone  the  right 
°^  sending  a  trumpeter  or  drummer ;  and,  on  the  other 
hand,  it  is  only  to  the  commander-in-chief  that  they  can  send 
such  messengers.  Should  a  general,  besieging  a  town,  at- 
tempt to  send  a  trumpeter  to  any  subaltern,  to  the  magis- 
tracy, or  the  townsmen,  the  governor  might  justly  treat  that 
trumpeter  as  a  spy.  The  French  monarch,  Francis  the 
First,  while  engaged  in  war  with  Charles  the  Fifth,  sent  a 
trumpeter  to  the  diet  of  the  empire,  then  assembled  at  Spires. 
The  trumpeter  was  seized  by  order  of  the  emperor,  who 
threatened  to  hang  him,  because  he  was  not  sent  to  him.* 
But  he  did  not  dare  to  put  his  threat  in  execution;  for, 
loudly  as  he  complained  on  the  subject,  he  was  nevertheless 
convinced,  in  his  own  mind,  that  the  diet  had  a  right,  even 
without  his  consent,  to  listen  to  the  proposals  brought  by  a 
trumpeter.  On  the  other  hand,  a  drummer  or  trumpeter 
from  a  subaltern  is  seldom  received,  unless  for  some  particu- 
lar object  depending  on  the  present  authority  of  that  subal- 
tern acting  in  his  function.  At  the  siege  of  Rynberg  in 
1598,  a  colonel  of  a  Spanish  regiment  having  taken  upon 
him  to  summon  the  town,  the  governor  sent  the  drummer 
orders  to  withdraw,  informing  him  at  the  same  time,  that,  if 
any  other  drummer  or  trumpeter  had  the  audacity  to  come 
on  the  same  errand  from  a  subaltern,  he  would  cause  the 
messenger  to  be  hanged.f 

§  92.  inde-  The  inviolability  of  a  public  minister,  or  the  protection  to 
pendence  of  which  he  has  a  more  sacred  and  particular  claim  than  any 
foreign  mi-  ojner  person,  whether  native  or  foreigner,  is  not  the  only 

nisters.  .    .,    r     ,        '    .  .  .  .  &  .      '    «          .  ,,      J 

(200)  privilege  he  enjoys :  the  universal  practice  of  nations  allows 
him,  moreover,  an  entire  independence  on  the  jurisdiction 
and  authority  of  the  state  in  which  he  resides.  Some  au- 
thors;}; maintain  that  this  independence  is  merely  a  matter 
of  institution  between  different  states,  and  will  have  it  refer- 
red to  the  arbitrary  law  of  nations,  which  owes  its  origin  to 
manners,  customs,  or  particular  conventions :  in  a  word,  they 
deny  it  to  be  grounded  on  the  natural  law  of  nations.  It  is 
true,  indeed,  that  the  law  of  nature  gives  men  a  right  to 

*  Wiequefort,  ubi  supra.  f  Idem,  ibid. 

(200)  See  ante,  pp.  459,  464.  j  See  Wolf.  Jus  Gent,  §  1059. 

590 


IMMUNITIES   OF   AMBASSADOKS,    ETC.  470 

punish  those  who  injure  them :  consequently,  it  empowers  BOOK  iv. 
sovereigns  to  punish  any  foreigner  who  disturbs  the  public  CHAP'  Y"' 
tranquillity,  who  offends  them,  or  maltreats  their  subjects : 
it  authorizes  them  to  compel  such  foreigner  to  conform  to 
the  laws,  and  to  behave  properly  towards  the  citizens.  But 
it  is  no  less  true,  that  the  natural  law  at  the  same  time  im-  [  471  ] 
poses  on  all  sovereigns  the  obligation  of  consenting  to  those 
things,  without  which  it  would  be  impossible  for  nations  to 
cultivate  the  society  that  nature  has  established  among  them, 
to  keep  up  a  mutual  correspondence,  to  treat  of  their  aifairs, 
or  to  adjust  their  differences.  Now,  ambassadors,  and  other 
public  ministers,  are  necessary  instruments  for  the  main- 
tenance of  that  general  society,  of  that  mutual  correspond- 
ence between  nations.  But  their  ministry  cannot  effect  the 
intended  purpose,  unless  it  be  invested  with  all  the  preroga- 
tives which  are  capable  of  insuring  its  legitimate  success,  and 
of  enabling  the  minister  freely  and  faithfully  to  discharge 
his  duty  in  perfect  security.  The  law  of  nations,  therefore, 
while  it  obliges  us  to  grant  admission  to  foreign  ministers, 
does  also  evidently  oblige  us  to  receive  those  ministers  in 
full  possession  of  all  the  rights  which  necessarily  attach  to 
their  character — all  the  privileges  requisite  for  the  due  per- 
formance of  their  functions.  It  is  easy  to  conceive  that  in- 
dependence must  be  one  of  those  privileges;  since,  without 
it,  that  security  which  is  so  necessary  to  a  public  minister, 
would  be  enjoyed  on  a  very  precarious  footing.  He  might 
be  molested,  persecuted,  maltreated,  under  a  thousand  pre- 
tences. A  minister  is  often  charged  with  commissions  that 
are  disagreeable  to  the  prince  to  whom  he  is  sent.  If  that 
prince  has  any  power  over  him,  and  especially  a  sovereign 
authority,  how  is  it  to  be  expected  that  the  minister  can  exe- 
cute his  master's  orders  with  due  fidelity,  firmness,  and  free- 
dom of  mind  ?  It  is  a  matter  of  no  small  importance  that 
he  have  no  snares  to  apprehend — that  he  be  not  liable  to  be 
diverted  from  his  functions  by  any  chicanery — that  he  have 
nothing  to  hope,  nothing  to  fear,  from  the  sovereign  to  whom 
he  is  sent.  In  order,  therefore,  to  the  success  of  his  minis- 
try, he  must  be  independent  of  the  sovereign  authority  and 
of  the  jurisdiction  of  the  country,  both  in  civil  and  criminal 
matters.  To  this  may  be  added,  that  the  nobility  and  other 
persons  of  eminence  would  be  averse  to  undertaking  an  em- 
bassy, if  such  commission  were  to  subject  them  to  a  foreign 
authority — not  unfrequently  in  countries  where  they  have 
little  friendship  to  expect  for  their  own  nation,  and  where 
they  must  support  disagreeable  claims,  and  enter  into  dis- 
cussions naturally  productive  of  acrimony.  In  a  word,  if  an 
ambassador  may  be  indicted  for  ordinary  offences,  be  cri- 
minally prosecuted,  taken  into  custody,  punished — if  he  may 
be  sued  in  civil  cases — the  consequence  will  often  be,  that  he 
will  neither  possess  the  power,  the  leisure,  nor  the  freedom 

591 


471  OF    RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.  of  mind  which  his  master's  affairs  require.  And  how  shall 
CHAP,  vii.  ne  jje  jjj^g  to  gUpp0rt;  the  dignity  of  representation  in  such  a 
state  of  subjection  ?  On  the  whole,  therefore,  it  is  impossible 
to  conceive  that  the  prince  who  sends  an  ambassador,  or  any 
other  minister,  can  have  any  intention  of  subjecting  him  to 
the  authority  of  a  foreign  power :  and  this  consideration  fur- 
nishes an  additional  argument  which  completely  establishes 
[  472  ]  the  independency  of  a  public  minister.  If  it  cannot  be  rea- 
sonably presumed  that  his  sovereign  means  to  subject  him  to 
the  authority  of  the  prince  to  whom  he  is  sent,  the  latter,  in 
receiving  the  minister,  consents  to  admit  him  on  the  footing 
of  independency :  and  thus  there  exists  between  the  two 
princes  a  tacit  convention,  which  gives  a  new  force  to  the 
natural  obligation. 

The  established  practice  is  perfectly  conformable  to  the 
principles  here  laid  down.  All  sovereigns  claim  a  perfect  in- 
dependency for  their  ambassadors  and  ministers.  If  it  be 
true  that  there  was  a  king  of  Spain,  who  from  a  desire  of 
arrogating  to  himself  a  jurisdiction  over  the  foreign  ministers 
resident  at  his  court,  wrote  to  all  the  Christian  princes,  in- 
forming them  that  if  his  ambassadors  should  commit  any 
crime  in  the  places  of  their  respective  residence,  it  Avas  his 
pleasure  that  they  should  forfeit  all  their  privileges,  and  be 
tried  according  to  the  laws  of  the  country,*  one  solitary  in- 
stance is  of  no  weight  in  an  affair  of  this  nature ;  nor  have 
his  successors  on  the  Spanish  throne  adopted  a  similar  mode 
of  thinking. 

\  93.  How  This  independency  of  the  foreign  minister  is  not  to  be 
the  foreign  converted  into  licentiousness :  it  does  not  excuse  him  from 
toTehave8  conforming  to  the  customs  and  laws  of  the  country  in  all  his 
external  actions,  so  far  as  they  are  unconnected  with  the 
object  of  his  mission  and  character : — he  is  independent ; 
but  he  has  not  a  right  to  do  whatever  he  pleases.  Thus, 
for  instance,  if  there  exist  a  general  prohibition  against  pass- 
ing in  a  carriage  near  a  powder-magazine,  or  over  a  bridge — 
against  walking  round,  and  examining  the  fortifications  of  a 
town,  &c. — the  ambassador  is  bound  to  respect  such  prohibi- 
tions, f  Should  he  forget  his  duty — should  he  grow  insolent, 

*  The  fact  is  advanced  by  Antony  respective  claims  to  precedency,  mado 

de  Vera,  in  his  "Idea  of  a  Perfect  a  general  request  to  all  the  foreign 

Ambassador :"  but  Wicquefort  sus-  ministers  not  to  send  their  carriages 

pects  the  authenticity  of  the  anecdote,  to  attend  the  public  entry  of  the  Ve- 

— not  having,  as  he  says,  met  with  it  netian  ambassador.  The  count  d'Es- 

in  any  other  writer.  Ambassad.  book  i.  trades,  at  that  time  minister  from  tho 

£  29.  court  of  France,  having  complied  with 

f  The  king  of  England  having  re-  his  majesty's  desire, — Louis  XIV.  tes- 

ceived  information  that  the  French  tified  his  dissatisfaction  at  the  dcfe- 

and  Spanish  ambassadors  had  seve-  rence  paid  by  the  count  to  the  British 

rally  collected  considerable  numbers  monarch's  message,  "which  was  no 

of  armed  men,  for  the  purpose  of  sup-  more  than  a  simple  request  not  to 

porting,  on  a  solemn  occasion,  their  send  carriages; — whereas,  even  if  he 
592 


IMMUNITIES   OF   AMBASSADOKS,    ETC.  472 

and  be  guilty  of  irregularities  and  crimes — there  are,  accord-  BOOK  rr. 
ing  to  the  nature  and  importance  of  his  offences,  various  CHAP-  YII-_ 
modes  of  repressing  him :  and  these  we  shall  speak  of,  after 
\ve  have  said  a  few  words  concerning  the  line  of  conduct  to 
be  pursued  by  a  public  minister  in  the  place  of  his  residence. 
He  must  not  avail  himself  of  his  independency  for  the  pur-  [  473  ] 
pose  of  violating  the  laws  and  customs;  he  should  rather 
punctually  conform  to  them,  as  far  as  they  may  concern  him, 
although  the  magistrate  has  no  compulsive  power  over  him ; 
and  he  is  especially  bound  to  a  religious  observance  of  the 
rules  of  justice  towards  all  who  have  any  dealings  with  him. 
As  to  what  concerns  the  prince  to  whom  he  is  sent,  the  am- 
bassador should  remember  that  his  ministry  is  a  ministry  of 
peace,  and  that  it  is  on  that  footing  only  he  is  received. 
This  reason  forbids  his  engaging  in  any  evil  machinations : 
let  him  serve  his  master  without  injuring  the  prince  who  re- 
ceives him.  It  is  a  base  treachery  to  take  advantage  of  the 
inviolability  of  the  ambassadorial  character,  for  the  purpose 
of  plotting  in  security  the  ruin  of  those  who  respect  that 
character — of  laying  snares  for  them — of  clandestinely  in- 
juring them — of  embroiling  and  ruining  their  affairs.  What 
would  be  infamous  and  abominable  in  a  private  guest,  shall 
that  be  allowable  and  becoming  in  the  representative  of  a 
sovereign  ? 

Here  arises  an  interesting  question.  It  is  but  too  common 
for  ambassadors  to  tamper  with  the  fidelity  of  the  ministers 
of  the  court  to  which  they  are  sent,  and  of  the  secretaries 
and  other  persons  employed  in  the  public  offices.  What 
ideas  are  we  to  entertain  of  this  practice?  To  corrupt  a 
person — to  seduce  him — to  engage  him  by  the  powerful  al- 
lurement of  gold  to  betray  his  prince  and  violate  his  duty, 
is,  according  to  all  the  established  principles  of  morality, 
undoubtedly  a  wicked  action.  How  comes  it  then  that  so 
little  scruple  is  made  of  it  in  public  affairs  ?  A  wise  and 
virtuous  politician*  sufficiently  gives  us  to  understand  that 
he  absolutely  condemns  that  scandalous  resource :  but,  fear- 
ful of  provoking  the  whole  tribe  of  politicians  to  assail  him 
at  once,  like  a  nest  of  hornets,  he  proceeds  no  further  than 
barely  advising  them  not  to  practise  such  manoeuvres  except 
when  every  other  resource  fails.  As  to  me,  whose  pen  is 
employed  in  developing  the  sacred  and  immutable  principles- 
had  issued  an  express  order  (as  being  subject;  since  every  sovereign  must 
at  liberty  to  give  what  orders  he  pleases  surely  have  a  right  to  prohibit  all  fo- 
in  his  own  kingdom,)  you  should  have  reign  ministers  doing  any  thing  in  his 
replied  that  you  receive  no  commands  dominions  which  may  tend  to  produce 
but  from  me:  and  if,  after  that,  he  disorder,  and  which,  moreover,  is  not 
had  attempted  to  use  violence,  the  necessary  to  the  exercise  of  their  mi- 
part  which  remained  for  you  to  act,  nisterial  functions, 
was  that  of  withdrawing  from  his  *  Mons.  Pequet,  Discours  sur  1'Art 
court." — I  think  the  French  monarch  de  Negocier,  p.  91. 
entertained  erroneous  ideas  on  the 

75  2  z  2  593 


473  OF   RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.  of  justice,  I  must,  in  duty  to  the  moral  world,  openly  aver 
CHAP.  YII.  ^at  ^  mo(je  Of  corruption  is  directly  repugnant  to  all  the 
rules  of  virtue  and  probity,  and  a  flagrant  violation  of  the 
law  of  nature.  It  is  impossible  to  conceive  an  act  of  a  more 
flagitious  nature,  or  more  glaringly  militant  against  the  re- 
ciprocal duties  of  men,  than  that  of  inducing  any  one  to  do 
evil.  The  corruptor  is  undoubtedly  guilty  of  a  crime  against 
the  wretch  whom  he  seduces ;  and  as  to  the  sovereign  whose 
secrets  are  thus  treacherously  explored,  is  it  not  both  an 
offence  and  an  injury  committed  against  him,  to  abuse  the 
friendly  reception  given  at  his  court,  and  to  take  advantage 
of  it  for  the  purpose  of  corrupting  the  fidelity  of  his  servants  ? 
He  has  a  right  to  banish  the  eorruptor  from  his  dominions, 
and  to  demand  justice  of  his  employer. 

If  ever  bribery  be  excusable,  it  is  when  it  happens  to  be 
the  only  possible  mode  by  which  we  can  completely  discover 
[  474  ]  and  defeat  a  heinous  plot,  capable  of  ruining,  or  materially 
endangering  the  state  in  whose  service  we  are  employed. 
In  the  conduct  of  him  who  betrays  such  a  secret,  there  may, 
according  to  circumstances,  be  no  criminality.  The  great 
and  lawful  advantage  accruing  from  the  action  which  we 
induce  him  to  perform,  together  with  the  urgent  necessity  of 
having  recourse  to  it,  may  dispense  with  our  paying  too  scru- 
pulous an  attention  to  the  questionable  complexion  of  the 
deed  on  his  part.  To  gain  him  over  is  no  more  than  an  act 
of  simple  and  justifiable  self-defence.  It  every  day  happens, 
that,  in  order  to  foil  the  machinations  of  wicked  men,  we 
find  ourselves  under  a  necessity  of  turning  to  our  account 
the  vicious  dispositions  of  men  of  similar  stamp.  On  this 
footing  it  was  that  Henry  the  Fourth  said  to  the  Spanish 
minister,  that  "  it  is  justifiable  conduct  in  an  ambassador  to 
have  recourse  to  bribery  for  the  purpose  of  detecting  the 
intrigues  that  are  carried  on  against  his  sovereign's  interest  ;"* 
adding,  that  the  affair  of  Marseilles,  that  of  Metz,  and  seve- 
ral others,  sufficiently  showed  that  he  had  good  reason  for 
endeavouring  to  penetrate  the  schemes  which  his  enemies  were 
plotting  at  Brussels  against  the  tranquillity  of  his  kingdom. 
That  great  prince,  it  is  to  be  presumed,  did  not  consider 
bribery  and  seduction  as  on  all  occasions  excusable  in  a  foreign 
minister,  since  he  himself  gave  orders  for  the  arrest  of  Bru- 
neau,  the  Spanish  ambassador's  secretary,  who  had  tampered 
with  Mairargues  for  the  clandestine  surrender  of  Marseilles 
to  the  Spaniards. 

In  "barely  taking  advantage  of  the  offers  made  to  us  by  a 
traitor,  whom  we  have  not  seduced,  our  conduct  is  less  in- 
consistent with  justice  and  honour.  But  the  examples  of  the 
Romans,  which  we  have  already  quoted  (Book  III.  §§  155, 
181),  and  in  which  there  was  question  of  declared  enemies, 

*  See  Solly's  Memoirs,  and  the  French  historians. 


IMMUNITIES   OF   AMBASSADOKS,    ETC.  474 

— those  examples,  I  say,  sufficiently  show  that  true  greatness    BOOK  iv. 
of  soul  disdains  even  that  resource,  lest  the  adoption  of  it  CHAP-  YI1-. 
should  hold  out  an  encouragement  to  infamous  treachery.     A 
prince  or  a  minister,  whose  ideas  of  honour  are  not  inferior 
to  those  of  the  ancient  Romans  above  noticed,  will  never 
stoop  to  embrace  the  proposals  of  a  traitor,  except  when  com- 
pelled by  some  dire,  uncontrollable  necessity :  and  even  then 
he  will  regret  the  degrading  circumstance  of  owing  his  pre- 
servation to  so  unworthy  an  expedient. 

But  I  do  not  here  mean  to  condemn  an  ambassador  for 
employing  civilities  and  polite  attentions,  and  even  presents 
and  promises,  with  a  view  to  gain  friends  for  his  sovereign. 
To  conciliate  men's  affections  and  good-will  is  not  seducing 
them,  or  impelling  them  to  the  perpetration  of  criminal 
deeds :  and,  as  to  those  new  friends,  it  is  their  business  to 
keep  a  strict  Avatch  over  their  own  hearts,  lest  their  attach- 
ment to  a  foreign  prince  should  ever  warp  them  from  the 
fidelity  which  they  owe  to  their  lawful  sovereign.  [  475  ] 

Should  an  ambassador  forget  the  duties  of  his  station —  $  94.  How 
should  he  render  himself  disagreeable  and  dangerous — should  he  ™° 
he  form  cabals  and  schemes  prejudicial  to  the  peace  of  the 
citizens,  or  to  the  state  or  prince  to  whom  he  is  sent — there 
are  various   modes  of  punishing  him,  proportionate  to  the 
nature  and  degree  of  his  offence.     If  he  maltreats  the  sub- 1.  for  ordi- 
jects  of  the  state — if  he  commits  any  acts  of  injustice  ornary.traus- 
violence  against  them — the  injured  subjects  are  not  to  seek grts: 
redress  from  the  ordinary  magistrates,  since  the  ambassador 
is  wholly  independent  of  their  jurisdiction  :  and,  for  the  same 
reason,  those  magistrates   cannot   proceed  directly  against 
him.    On  such  occasions,  therefore,  the  plaintiffs  are  to  make 
application  to  their  sovereign,  who  demands  justice  from  the 
ambassador's  master,  and,  in  case  of  a  refusal,  may  order  the 
insolent  minister  to  quit  his  dominions. 

Should   a   foreign   minister   offend  the   prince   himself —  g  95.  2.  for 
should  he  fail  in  the  respect  which  he  owes  him,  or,  by  his  fajllts  com- 
intrigues,    embroil   the   state   and   the   court — the   offended  ™1^t  the 
prince,  from  a  wish  to  keep  measures  with  the  offender's  pX^. 
sovereign,  sometimes  contents  himself  with  simply  requiring 
that  the  minister  be  recalled ;  or  if  the  transgression  be  of  a 
more  serious  nature,  he  forbids  his  appearance  at  court  in  the 
interval  while  his  master's  answer  is  expected ;  and,  in  cases 
of  a  heinous  complexion,  he  even  proceeds  so  far  as  to  expel 
him  from  his  territories. 

Every  sovereign  has  an  unquestionable  right  to  proceed  in  3  95.  Right 
this  manner ;  for,  being  master  in  his  own  dominions,  no  of  ordering 
foreigner  can  stay  at  his  court,  or  in  his  territories,  without  awa>' an 
his    permission.       And    though    sovereigns    are    generally  "'^y^ 
obliged  to  listen  to  the  overtures  of  foreign  powers,  and  to  ty,  or  justly 
admit  their  ministers,  this  obligation  entirely  ceases  with  re-  suspected. 
gard  to  a  minister,  who,  being  himself  deficient  in  the  duties 

595 


475  OF   RIGHTS,    PRIVILEGES,    AND 

BOOK  iv.    attached  to  this  station,  becomes  dangerous  to,  or  justly  sus- 
CHAP.  vii.  pecte(j  by  the  sovereign,  to  whom  he  can  come  in  no  other 


character  than  that  of  a  minister  of  peace.  Can  a  prince  be 
obliged  to  suffer  that  a  secret  enemy,  who  is  raising  dis- 
turbances in  the  state  and  plotting  its  ruin,  shall  remain  in 
his  dominions  and  appear  at  his  court  ?  Ridiculous  was  the 
answer  of  Philip  the  Second  td  queen  Elizabeth,  on  her  re- 
quest that  he  would  recall  his  ambassador,  who  was  carrying 
on  dangerous  plots  against  her.  The  Spanish  monarch  re- 
fused to  recall  him,  saying,  that  "the  condition  of  princes 
would  be  very  wretched  indeed,  if  they  were  obliged  to  recall 
a  minister  whenever  his  conduct  did  not  suit  the  humour  or 
the  interest  of  those  with  whom  he  was  negotiating."*  Much 
more  wretched  would  be  the  condition  of  princes,  if  they 
were  bound  to  suffer  in  their  states,  and  at  their  court,  a  mi- 
nister who  was  disagreeable  or  justly  suspected,  an  incendiary, 
an  enemy  disguised  under  the  character  of  an  ambassador, 
who  should  avail  himself  of  his  inviolability  for  the  purpose 
of  boldly  plotting  schemes  of  a  pernicious  tendency.  The 
queen,  justly  offended  at  Philip's  refusal,  put  a  guard  on  the 
[  476  ]  ambassador. f 

§  97.  Right  But  is  a  prince  on  every  occasion  bound  to  confine  his  re- 
of repressing  sentment  to  the  simple  expulsion  of  an  ambassador,  however 
force^f  he  ^^  *^e  enorm^es  °^  which  the  latter  may  have  been  guilty  ? 
behaves  as*  Such  is  the  doctrine  maintained  by  some  authors,  who  ground 
an  enemy,  their  opinion  on  the  absolute  independency  of  a  public  minis- 
ter. I  own  he  is  independent  of  the  jurisdiction  of  the  coun- 
try :  and  I  have  already  said,  that,  on  this  account,  the  com- 
mon magistrate  cannot  proceed  against  him.  I  further  admit, 
that,  in  all  cases  of  ordinary  transgression,  all  instances  of 
offensive  or  disorderly  behaviour,  which,  though  injurious  to 
individuals,  or  to  society,  do  not  endanger  the  safety  of  the 
state  or  of  the  sovereign,  there  is  that  degree  of  respect  due 
to  the  ambassadorial  character  which  is  so  necessary  for  the 
correspondence  of  nations,  and  to  the  dignity  of  the  prince 
represented,  that  a  complaint  be  first  made  to  him  of  the 
conduct  of  his  minister,  together  with  a  demand  of  repara- 
tion ;  and  that,  if  no  satisfaction  is  obtained,  the  offended 
sovereign  be  then  content  with  simply  ordering  the  ambassa- 
dor to  quit  his  dominions,  in  case  the  serious  nature  of  the 
offences  absolutely  require  that  a  stop  be  put  to  them.  But 
shall  an  ambassador  be  suffered  with  impunity  to  cabal  against 
the  state  where  he  resides,  to  plot  its  ruin,  to  stir  up  the  sub- 
jects to  revolt,  and  boldly  to  foment  the  most  dangerous  con- 
spiracies, under  the  assurance  of  being  supported  by  his  master  ? 
If  he  behaves  as  an  enemy,  shall  it  not  be  allowable  to  treat 
him  as  such  ?  The  question  admits  not  of  a  doubt  with  re- 
gard to  an  ambassador  who  proceeds  to  overt  acts,  who  takes 

*  Wicquefort,  book  L  §  29.  t  Idem,  ibid. 

596 


IMMUNITIES   OF  AMBASSADORS,   ETC.  476 

up  arms,  and  uses  violence.     In  such  case,  those  whom  he    BOOK  iv. 
attacks  may  repel  him :  self-defence  being  authorized  by  the  CHAP-  Tn- 
law  of  nature.     Those  Roman  ambassadors,  who,  being  sent 
to  the  Gauls,  fought  against  them  with  the  people  of  Clusium, 
divested  themselves  of  the  ambassadorial  character.*     Can 
any  one  therefore  imagine  that  the  Gauls  were  bound  to  spare 
them  in  the  hour  of  battle  ? 

The  question  is  more  difficult  with  respect  to  an  ambassa-  §  98.   Am- 
dor  who,  without  proceeding  to  overt  acts,  broaches  plots  of  bassador 
a  dangerous  tendency, — who,  by  his  occult  machinations,  ex-  *j°™^ 
cites  the  subjects  to  revolt,  and  who  forms  and  encourages  p^^nT 
conspiracies  against  the  sovereign  or  the  state.     Shall  it  be  conspira- 
deemed  unlawful  to  repress  and  inflict  exemplary  punishment  cies. 
on  a  traitor  who  abuses  the  sacred  character  with  which  he 
is  invested,  and  who  is  himself  the  first  to  set  the  example  of 
violating  the  law  of  nations  ?   That  sacred  law  provides  no  less 
for  the  safety  of  the  prince  who  receives  an  ambassador,  than 
for  that  of  the  ambassador  himself.     But,  on  the  other  hand, 
if  we  allow  the  offended  prince  a  right  to  punish  a  foreign 
minister  in  such  cases,  the  subjects  of  contest  and  rupture  [  47 7  ] 
between  sovereigns   will   become  very   frequent;    and  it  is 
much  to  be  feared  that  the  ambassadorial  character  will  cease 
to  enjoy  that  protection  and  inviolability  which  are  so  essen- 
tial to  it.     There  are  certain  practices  connived  at  in  foreign 
ministers,  though  not  always  strictly  consistent  with  the  rules 
of  rectitude:  there  are  others,  again,  which  are  not  to  be 
corrected  by  actual  punishment,  but  simply  by  ordering  the 
minister  to  depart.     How  shall  we,  in  every  case,  be  able  to 
ascertain  the  precise  boundaries  of  those  different  degrees  of 
transgression  ?     When  there  exists  a  premeditated  design  of 
persecuting  a  minister,  an  odious  colouring  will  be  given  to 
his  intrigues :  his  intentions  and  proceedings  will  be  calum- 
niated by  sinister  constructions ;  even  false  accusations  will 
be  raised  against  him.     Finally,  sucti  plots  as  we  here  allude 
to  are  generally  conducted  with  caution :  they  are  carried  on 
so  secretly,  that,  to  obtain  full  proof  of  them,  is  a  matter  of 
extreme  difficulty,  and  indeed  hardly  possible,  without  the 
formalities  of  justice, — formalities  to  which  we  cannot  sub- 
ject a  minister  who  is  independent  of  the  jurisdiction  of  the 
country. 

In  laying  down  the  grounds  of  the  voluntary  law  of  na- 
tions (Prelim.  §  21),  we  have  seen  that,  in  particular  con- 
junctures, nations  must,  with  a  view  to  the  general  advan- 
tage, necessarily  recede  from  certain  rights,  which,  taken  in 
themselves  and  abstracted  from  every  other  consideration, 
should  naturally  belong  to  them.  Thus,  although  the  sove- 

*  Livy,  book  v.  chap.  26,  where  the    "  Legati,  contra  jus  gentium,  arma  capi- 
historian  peremptorily  decides  that  those    unt." 
ambassadors  violated  the  law  of  nations : 

597 


477  OF   RIGHTS,   PRIVILEGES,   AND 

BOOK  iv.  reign  who  has  justice  on  his  side  be  alone  really  entitled  to 
CHAP-  Yn-  all  the  rights  of  war  (Book  III.  §  188),  he  is  nevertheless 
obliged  to  look  upon  his  enemy  as  enjoying  equal  rights  with 
himself,  and  to  treat  him  accordingly  (Ibid.  §§  190,  191). 
The  same  principles  must  be  our  rule  in  the  present  case. 
We  may  therefore  venture  to  affirm,  that,  in  consideration 
of  the  extensive  utility,  nay,  tne  absolute  necessity  of  em- 
bassies, sovereigns  are  bound  to  respect  the  inviolability  of 
an  ambassador  as  long  as  it  is  not  incompatible  with  their 
own  safety  and  the  welfare  of  their  state.  Consequently, 
when  the  intrigues  of  the  ambassador  have  transpired,  and 
his  plots  are  discovered, — when  the  danger  is  passed,  so  that 
there  no  longer  exists  a  necessity  of  laying  hands  on  him  in 
order  to  guard  against  it, — the  offended  sovereign  ought,  in 
consideration  of  the  ambassadorial  character,  to  renounce 
his  general  right  of  punishing  a  traitor  and  a  secret  enemy 
who  conspires  against  the  safety  of  the  state, — and  to  con- 
tent himself  with  dismissing  the  guilty  minister,  and  requir- 
ing that  punishment  to  be  inflicted  on  him  by  the  sovereign 
to  whose  authority  he  is  subject. 

Such,  in  fact,  is  the  mode  of  proceeding  established  by 
common  consent  among  the  generality  of  nations,  especially 
those  of  Europe.  Wicquefort*  gives  us  several  instances  of 
some  of  the  principal  European  sovereigns,  who,  on  discover- 
[  478  ]  ing  ambassadors  to  be  guilty  of  odious  machinations,  have 
limited  their  resentment  to  the  expulsion  of  the  offenders, 
without  even  making  application  to  have  them  punished  by 
their  masters,  of  whom  they  did  not  expect  to  obtain  a  com- 
pliance with  such  a  demand.  To  these  instances  let  us  add 
that  of  the  duke  of  Orleans,  regent  of  France.  That  prince, 
having  detected  a  dangerous  conspiracy  which  had  been 
formed  against  him  by  the  prince  de  Cellamare,  ambassador 
from  Spain,  behaved  with  great  moderation  on  the  occasion, 
— not  adopting  any  severer  measures  than  those  of  setting  a 
guard  over  the  guilty  minister,  seizing  his  papers,  and  caus- 
ing him  to  be  conducted  out  of  the  kingdom.  Another  re- 
markable instance,  of  very  ancient  date,  stands  recorded  by 
the  Roman  historians, — that  in  which  Tarquin's  ambassadors 
were  concerned.  Having  repaired  to  Rome  under  pretence 
of  claiming  the  private  property  belonging  to  their  master, 
who  had  been  expelled  from  his  kingdom,  they  tampered  with 
the  profligate  young  nobility,  and  engaged  them  in  a  black 
and  infamous  conspiracy  against  the  liberties  of  their  coun- 
try. Although  such  conduct  would  have  authorized  the 
rulers  of  the  Roman  state  to  treat  them  as  enemies,  the  con- 
suls and  senate  nevertheless  respected  the  law  of  nations  in 
the  persons  of  those  ambassadors,  f  The  offenders  were  sent 

*  Ambassad.  book  i.  §g  27,  28,  29.          tamen  gentium  valuit    Tit  Liv.  lib.  ii. 
j-  Et    quamquam    visi    aunt    (legati)     cap.  4. 
commisisse  ut  hostium  loco  essent,  jus 
593 


IMMUNITIES   OF   AMBASSADORS,    ETC.  478 

back  to  their  employer,  without  having  received  any  personal    BOOK  iv. 
injury :  but,  from  Livy's  account  of  the  transaction,  it  ap-  CHAP-  YII» 
pears  that  the  letters  which  they  had  from  the  conspirators 
to  Tarquin  were  taken  from  them. 

This  example  leads  us  to  the  true  rule  of  the  law  of  na-  ?  99.  What 
tions,  in  the  cases  now  in  question.  An  ambassador  cannot  may  be 
be  punished  because  he  is  independent :  and,  for  the  reasons  a°°* 
we  have  alleged,  it  is  not  proper  to  treat  him  as  an  enemy,  the 
till  he  himself  proceeds  to  overt  acts  of  violence :  but  we  are  cy  of  the 
justifiable  in  adopting  against  him  every  measure  which  thecase< 
circumstances  of  the  case  may  reasonably  require  for  the 
purpose  of  defeating  his  machinations  and  averting  the  evil 
which  he  has  plotted.  If,  in  order  to  disconcert  and  prevent 
a  conspiracy,  it  were  necessary  to  arrest  or  even  put  to  death 
an  ambassador  who  animates  and  conducts  it,  I  do  not  see 
why  we  should  for  a  moment  hesitate  to  take  either  of  those 
steps, — not  only  because  the  safety  of  the  state  is  the  su- 
preme law,  but  also  because,  independent  of  that  maxim,  the 
ambassador's  own  deeds  give  us  a  perfect  and  particular 
right  to  proceed  to  such  extremities.  A  public  minister,  I 
grant,  is  independent,  and  his  person  is  sacred :  but  it  is  un- 
questionably lawful  to  repel  his  attacks,  whether  of  a  secret 
or  of  an  open  nature,  and  to  defend  ourselves  against  him, 
whenever  he  acts  either  as  an  enemy  or  a  traitor.  And  if 
we  cannot  accomplish  our  own  preservation  without  harm 
thence  resulting  to  him,  it  is  he  himself  who  has  laid  us  un- 
der a  necessity  of  not  sparing  him.  On  such  an  occasion, 
it  may  with  great  truth  be  asserted,  that  the  minister  has, 
by  his  own  act,  excluded  himself  from  the  protection  of  the 
law  of  nations.  Suppose  the  Venetian  senate, — though  ap- 
prised of  the  marquis  of  Bedamar's  conspiracy,  and  impressed 
with  a  thorough  conviction  of  that  minister's  being  the  prime  [  479  ] 
mover  and  director  of  the  whole  business, — had  nevertheless 
been,  in  other  particulars,  destitute  of  sufficient  information 
to  enable  them  to  crush  the  detestable  plot, — suppose  they 
had  been  uncertain  with  respect  to  the  number  and  rank  of 
the  conspirators,  the  designs  they  had  in  agitation,  and  the 
particular  quarter  where  the  meditated  mischief  was  to  burst 
forth, — whether  an  intention  was  entertained  of  exciting  a 
revolt  among  the  marine  or  the  land  forces,  or  effecting  the 
clandestine  capture  of  some  important  fortress, — would  they, 
under  such  circumstances,  have  been  bound  to  suffer  the 
ambassador  to  depart  unmolested,  and  thus  afford  him  an 
opportunity  of  joining  and  heading  his  accomplices,  and  of 
bringing  his  designs  to  a  successful  issue ! — No  man  will 
seriously  answer  in  the  affirmative : — the  senate,  therefore, 
would  have  had  a  right  to  arrest  the  marquis  and  all  his 
household,  and  even  to  extort  from  them  their  detestable 
secret.  But  those  prudent  republicans,  seeing  the  danger 
was  removed,  and  the  conspiracy  totally  suppressed,  chose 

599 


479  .OF   EIGHTS,    PRIVILEGES,   AND 

BOOK  iv.    to  keep  measures  with  Spain :  wherefore  they  prohibited  all 

CHAP"  VIL  accusation  of  the  Spaniards  as  concerned  in  the  plot,  and 

contented  themselves  with  simply  requesting  the  ambassador 

to  withdraw,  in  order  to  screen  himself  from  the  rage  of  the 

populace. 

§  100.   Am-     In  this  case  the  same  rule  is  to  be  followed  which  we  have 

alrea(ty  laid  down  (Book  IIL  §  J36')  in  treating  of  what  may 
lawfully  be  done  to  an  enemy.  Whenever  an  ambassador 
sovereign's  acts  as  an  enemy,  we  are  justifiable  in  adopting  against  him 
life.  every  measure  that  is  necessary  for  the  purpose  of  defeating 

his  evil  designs  and  insuring  our  own  safety.  It  is  on  the 
same  principle,  and  under  the  idea  which  represents  the  am- 
bassador as  a  public  enemy  when  he  behaves  as  such,  that  we 
proceed  to  determine  the  treatment  he  ought  to  receive  in 
case  he  pursues  his  criminal  career  to  the  last  stage  of  enor- 
mity. If  an  ambassador  commit  any  of  those  atrocious 
crimes  which  sap  the  very  foundations  of  the  general  safety 
of  mankind, — if  he  attempt  to  assassinate  or  poison  the 
prince  who  has  received  him  at  his  court, — he  unquestionably 
deserves  to  be  punished  as  a  treacherous  enemy  guilty  of 
poisoning  or  assassination  (See  Book  III.  §  155).  The  am- 
bassadorial character,  which  he  has  so  basely  prostituted, 
cannot  shield  him  from  the  sword  of  justice.  Is  the  law  of 
nations  to  protect  such  a  criminal,  when  the  personal  secu- 
rity of  all  sovereigns  and  the  general  safety  of  mankind 
loudly  demand  that  his  crime  should  be  expiated  by  the  sacri- 
fice of  his  forfeit  life  ?  It  is  true,  indeed,  that  we  have  little 
room  to  apprehend  that  a  public  minister  will  proceed  to  such 
dreadful  enormities :  for  it  is  generally  men  of  honour  who 
are  invested  with  the  character  of  ambassadors ;  and  even 
if  there  should,  among  the  number,  be  some  whose  con- 
sciences are  callous  to  every  scruple,  the  difficulties,  never- 
theless, and  the  magnitude  of  the  danger,  are  sufficient  to 
deter  them  from  the  attempt.  Yet  such  crimes  are  not 
[  480  ]  wholly  unexampled  in  history.  Monsieur  Barbeyrac*  in- 
stances the  assassination  of  the  lord  of  Sirmium  by  an  am- 
bassador of  Constantinus  Diogenes,  governor  of  the  neigh- 
bouring province  for  Basilius  II.,  emperor  of  Constantinople; 
and  for  his  authority  he  quotes  the  historian  Cedrenus.  The 
following  fact  is  likewise  to  the  purpose.  In  the  year  1382, 
Charles  III.,  king  of  Naples,  having  sent  to  his  competitor, 
Louis  duke  of  Anjou,  a  knight  named  Matthew  Sauvage,  in 
the  character  of  a  herald,  to  challenge  him  to  single  combat, — 
the  herald  was  suspected  of  carrying  a  demi-lance  whose 
point  was  tinged  with  a  poison  of  so  subtle  a  nature,  that  who- 
ever should  look  steadfastly  on  it,  or  even  suffer  it  to  touch 
his  clothes,  would  instantly  drop  down  dead.  The  duke, 

*  In  his  notes  on  Bynkershoek's  treatise  on  the  Competent  Judge  of  Am- 
bassadors, ch.  xxiv.  §  5,  note  2. 
600 


IMMUNITIES   OF  AMBASSADORS,    ETC.  480 

being  apprized  of  the  danger,  refused  to  admit  the  herald  BOOK  rv. 
into  his  presence,  and  ordered  him  to  be  taken  into  custody.  CHAP-  ""*-. 
The  culprit  was  interrogated,  and,  upon  his  own  confession, 
suffered  the  punishment  of  decapitation.  Charles  complained 
of  the  execution  of  his  herald,  as  an  infraction  of  the  laws 
and  usages  of  war :  but  Louis,  in  his  reply,  maintained  that 
he  had  not  violated  those  laws  in  his  treatment  of  Sauvage, 
who  had  been  convicted  by  his  own  confession.*  Had  the 
crime  imputed  to  the  herald  been  clearly  substantiated,  he 
was  an  assassin,  whom  no  law  could  protect.  But  the  very 
nature  of  the  accusation  sufficiently  proves  that  it  was  a 
false  and  groundless  charge. 

The  question  of  which  we  have  been  treating  has  been  g  101.  Two 
debated  in  England  and  France  on  two  famous  occasions,  remarkable 
In  the  former  of  those  countries,  the  question  arose  in  the 
case  of  John  Leslie,  bishop  of  Ross,  ambassador  from  Mary, 
queen  of  Scots.  That  minister  was  continually  intriguing  ties  of  public 
against  queen  Elizabeth,  plotting  against  the  tranquillity  of  ministers, 
the  state,  forming  conspiracies,  and  exciting  the  subjects  to 
rebellion.  Five  of  the  most  able  civilians,  being  consulted 
by  the  privy  council,  gave  it  as  their  opinion,  that  "  an  am- 
bassador raising  a  rebellion  against  the  prince  at  whose  court 
he  resides,  forfeits  the  privileges  annexed  to  his  character, 
and  is  subject  to  the  punishment  of  the  law."  They  should 
rather  have  said,  that  he  may  be  treated  as  an  enemy.  But 
the  council  contented  themselves  with  causing  the  bishop  to 
be  arrested,  and  after  having  detained  him  a  prisoner  in  the 
Tower  for  two  years,  set  him  at  liberty  when  there  was  no 
longer  any  danger  to  be  apprehended  from  his  intrigues,  and 
obliged  him  to  depart  from  the  kingdom.f  This  instance 
may  serve  to  confirm  the  principles  which  we  have  laid  down ; 
and  the  like  may  be  said  of  the  following.  Bruneau,  secre- 
tary to  the  Spanish  ambassador  in  France,  was  detected  in 
the  very  act  of  treating  with  Mairargues,  in  a  time  of  pro- 
found peace,  for  the  surrender  of  Marseilles  to  the  Spaniards. 
The  secretary  was  thereupon  committed  to  prison,  and  was  [  481  ] 
subjected  to  a  judicial  examination  by  the  parliament  before 
whom  Mairargues  was  tried.  That  body,  however,  did  not 
pronounce  sentence  of  condemnation  on  Bruneau,  but  referred 
his  case  to  the  king,  who  restored  him  to  his  master,  on  con- 
dition that  the  latter  should  order  him  to  depart  immediately 
from  the  kingdom.  The  ambassador  warmly  complained  of 
the  imprisonment  of  his  secretary :  but  Henry  IV.  very  judi- 
ciously answered,  that  "the  law  of  nations  does  not  forbid 
putting  a  public  minister  under  an  arrest,  in  order  to  hinder 
him  from  doing  mischief."  The  king  might  have  added,  that 
a  nation  has  even  a  right  to  adopt,  against  a  public  minister, 

*  History  of  the  Kings  of  the  Two  Sicilies,  by  Monsieur  D'Egly. 
f  Cambden's  Annal.  Angl.  ad  ann.  1571, 1573. 

76  3  A  601 


481  OF   BIGHTS,    PRIVILEGES,    AND 

BOOK  iv.  every  measure  which  may  be  necessary  for  the  purpose  of 
CHAP.  YII.  war(ijng  Off  the  mischief  he  meditates  against  her, — of  defeat- 
ing his  projects,  and  preventing  their  evil  consequences.  It 
was  on  this  principle  that  the  parliament  were  authorized  to 
interrogate  Bruneau,  for  the  purpose  of  discovering  all  the 
parties  concerned  in  so  dangerous  a  conspiracy.  The  ques- 
tion, whether  foreign  ministers  who  violate  the  law  of  nations 
do  thereby  forfeit  their  privileges,  was  warmly  debated  at 
Paris,  but,  without  waiting  to  have  the  point  decided,  the 
king  restored  Bruneau  to  his  master.* 

§  102.  Whe-     It  is  not  lawful  to  maltreat  an  ambassador  by  way  of  reta- 
therrepri-    liation:  for  the  prince  who  uses  violence  against  a  public 
madron  an  mil"ster  *s  guilty  of  a  crime ;  and  we  are  not  to  take  ven- 
ambassador.  geance  for  his   misconduct  by  copying  his  example.      We 
never  can,  under  pretence  of  retaliation,  be  authorized  to 
commit  actions  which  are  in  their  own  nature  unjustifiable : 
and  such  undoubtedly  would  be  any  instance  of  ill  treatment 
inflicted  on  an  unoffending  minister  as  a  punishment  for  his 
master's  faults.     If  it  be  an  indispensable  duty  to  pay  a 
general  regard  to  this  rule  in  cases  of  retaliation,  it  is  more 
particularly  obligatory  with   regard  to  an  ambassador,   on 
account  of  the  respect  due  to  his  character.     The  Cartha- 
ginians having  violated  the  law  of  nations  in  the  persons  of 
the  Roman  ambassadors,  the  ambassadors  of  that  perfidious 
nation  were  brought  to  Scipio,  who,  being  asked  how  he 
would  have  them  to  be  treated,  replied,  "  Not  in  the  manner 
that  the  Carthaginians  have  treated  ours."     Accordingly  he 
[  482  ]  dismissed  them  in  safety  :f  but  at  the  same  time  he  made 
preparations  for  chastising,  by  force  of  arms,  the  state  which 
had  violated  the  law  of  nations.J     There  cannot  be  a  better 

*  See  the  discussion  of  the  question,  with    common    decency."       La   Croix, 

and  the  discourse  which  Henry  IV.  held  Hist,  of  Timur-Bec,  book  ii.  chap.  26. 

on  this  subject  to  the  Spanish  ambassa-  The  same   historian,  in  his  account  of 

dor,  in  the  Memoires  de  Nevers,  vol.  ii.  Barcouc,    sultan    of    Egypt,   who    put 

p.  858,  et  seq.,  in  Matthieu,  vol.  ii.  book  Timur's  ambassador  to  death,  observes, 

iii.  and  other  historians.  — "  that  it  was  an  infamous  action  ; — 

Joseph  Sofi,  king  of  Carezem,  having  that  to  insult  an  ambassador  is  a  vio- 

iinprisoned  an   ambassador   of  Timur-  lation   of  the   law   of   nations,    and  a 

Bee,   Timur's   secretary  of  state  wrote  deed  at  which  nature  herself  shudders." 

him  a  letter  couched  in  strong  terms  Ibid,    book    v.    chap.  17.      Edit   A.D. 

of  expostulation  on  the  subject  of  that  1797. 

infraction   of  the   law  of  nations, — in-  f  Appian,  quoted  by  Grotius,  lib.  ii. 

forming  him  that  "  it  is  a  maxim  with  cap.  28,  g  7.     According  to   Diodorus 

kings  to  consider  the  person  of  an  am-  Siculus,   Scipio    said   to   the    Romans, 

bassador  as   sacred :   for  which  reason  "  Do   not    imitate    that    conduct  with 

he   is   always    held   exempt    from   the  which    you     reproach    the    Carthagi- 

punishment  of  death  or  imprisonment,  mans."     EKITTKJI/   owe   E^IJ  6ctv  Trparrav  5 

if  the   sovereign   to  whom  he  is   sent  rot;   Kapxrfoviois  /rtyaXouo-j.     Diod.    Sic. 

has   even  the  slightest  knowledge   of  Excerpt.  Peiresc.  p.  290. 

the   law  of  nations,  or  the  ambassador  J  Livy,   book    xxx.    chap.   28,    §   7. 

himself  does  but  possess  sufficient  pru-  That     historian     makes     Scipio    say, 

dence   to   refrain  from  the  commission  "Though     the      Carthaginians     have 

of  any  heinous  offence,  and  to  behave  violated  the  faith  of  the  truce,  and  the 


IMMUNITIES   OF  AMBASSADORS,   ETC.  482 

pattern  for  sovereigns  to  follow  on  such  an  occasion.  If  the  BOOK  IT. 
injury  for  which  we  would  make  retaliation  does  not  concern  CHAP-  *"• 
a  public  minister,  there  exists  a  still  stronger  certainty  that 
we  must  not  retaliate  on  the  ambassador  of  the  sovereign 
against  whom  our  complaint  lies.  The  safety  of  public 
ministers  would  be  very  precarious,  if  it  were  liable  to  be 
affected  by  every  casual  difference  that  might  arise.  But 
there  is  one  particular  case  in  which  it  appears  perfectly 
justifiable  to  arrest  an  ambassador,  provided  no  ill  treatment 
be  given  to  him  in  other  respects.  When,  for  instance,  a 
prince  has,  in  open  violation  of  the  law  of  nations,  caused 
our  ambassador  to  be  arrested,  we  may  arrest  and  detain 
his,  as  a  pledge  for  the  life  and  liberty  of  ours.  But  should 
this  expedient  prove  unsuccessful,  it  would  become  our  duty 
to  liberate  the  unoffending  minister,  and  to  seek  redress  by 
more  efficacious  measures.  Charles  the  Fifth  caused  the 
French  ambassador,  who  had  made  him  a  declaration  of  war, 
to  be  put  under  an  arrest ;  whereupon  Francis  the  First 
caused  Granvelle,  the  emperor's  ambassador,  to  be  arrested 
in  like  manner.  At  length,  however,  it  was  agreed  that  both 
those  ministers  should  be  conducted  to  the  frontier,  and  re- 
leased at  the  same  time.* 

We  have  derived  the  independence  and  inviolability  of  the  \  103. 
ambassadorial  character  from  the  natural  and  necessary  prin- Asree™en* 
ciples  of  the  law  of  nations.     These  prerogatives  are  further  °on° g^ning 
confirmed  by  the  uniform  practice  and  general  consent  of  the  privi- 
mankind.     We  have  seen  above  (§  84),  that  the   Spaniards  leges  of 
found  the  right  of  embassies  established  and  respected  in^assa- 
Mexico.     The  same  principle  also  prevails  even  among  the 
savage  tribes  of  North  America :  and  if  we  thence  turn  our 
eye  to  the  other  extremity  of  the  globe,  we  find  that  ambas- 
sadors are  highly  respected  in  China.  In  India  also  the  same 
rule  is  observed,  though  with  less  scrupulous  punctuality  :f 
the  king  of  Ceylon,  for  instance,  has  sometimes  imprisoned 
the  ambassadors  of  the  Dutch  East-India  company.     Being 
master  of  the  places  which  produce  cinnamon,  he  knows  that 
the  Dutch,  in  consideration  of  a  profitable  commerce,  will 
overlook  many  irregularities  in  his  conduct ;  and,  with  the 
true  disposition  of  a  barbarian,  he  takes  an  undue  advantage 
of  that  circumstance.     The  Koran  enjoins  the  moslems  to  re- 
spect public  ministers :  and  if  the  Turks  have  not  in  all  in- 
stances uniformly  observed  that  precept,  their  violations  of  [  483  ] 
it  are  rather  imputable  to  the  ferocity  of  particular  princes 
than  to  the  principles  of  the  nation  at  large.     The  rights 
of  ambassadors  were  formerly  very  well  known  among  the 

law  of  nations,  in  the  person  of  our        *  Mezeray's  Hist  of  France,  vol.  ii. 

ambassadors,  I  will  do  nothing  against    p.  470. 

theirs  that  is  unworthy  of  the  maxims         f  General     Hist    of   Voyages,    art 

of  the  Roman  people,  and  of  my  own    China,  and  Indies. 

principles." 

603 


483  OF   RIGHTS,    PRIVILEGES,   AND 

BOOK  iv.  Arabs.  A  writer  of  that  nation*  relates  the  following  inci- 
CHAP.  vii.  ^en^. .  Khaled,  an  Arabian  chief,  having  come,  in  the  cha- 
racter of  ambassador,  to  the  army  of  the  emperor  Heraclius, 
used  insolent  language  to  the  general :  whereupon  the  latter 
observed  to  him,  that  "  ambassadors  were  protected  from 
all  kind  of  violence  by  the  law  which  universally  prevailed 
among  nations :  and  it  was  probably  that  consideration  which 
had  emboldened  the  Arab  to  speak  to  him  in  so  indecent  a 
manner,  "f  It  would  be  quite  unnecessary,  in  this  place,  to 
accumulate  the  various  examples  with  which  the  history  of 
the  European  nations  presents  us :  the  enumeration  would 
be  endless ;  and  the  established  customs  of  Europe  on  this 
subject  are  sufficiently  known.  Saint  Louis,  when  at  Acra 
in  Palestine,  gave  a  remarkable  instance  of  the  protection 
due  to  public  ministers : — an  ambassador  from  the  Old  Man 
of  the  Mountain,  or  prince  of  the  Assassins,  speaking  inso- 
lently to  the  French  monarch,  the  grand-masters  of  the 
orders  of  the  Temple  and  the  Hospital  informed  that  minis- 
ter, that,  "  were  it  not  for  the  respect  paid  to  the  character 
with  which  he  was  invested,  they  would  cause  him  to  be 
thrown  into  the  sea."$  The  king,  however,  dismissed  him 
without  suffering  the  slightest  injury  to  be  done  him.  Never- 
theless, as  the  prince  of  the  Assassins  was  on  his  own  part 
guilty  of  grossly  violating  the  most  sacred  rights  of  nations, 
it  would  have  been  reasonable  to  suppose  that  his  ambassa- 
dor had  no  claim  to  protection,  except  indeed  on  this  single 
consideration,  that,  as  the  privilege  of  inviolability  is  founded 
on  the  necessity  of  keeping  open  a  safe  channel  of  commu- 
nication, through  which  sovereigns  may  reciprocally  make 
proposals  to  each  other,  and  carry  on  negotiations  both  in 
peace  and  in  war,  the  protection  should  therefore  extend 
even  to  the  envoys  of  those  princes,  who,  guilty  themselves 
of  violating  the  law  of  nations,  would  otherwise  have  no  title 
to  our  respect. 

gi04.  Free  There  are  rights  of  another  nature,  which,  though  not 
exercise  of  necessarily  annexed  to  the  character  of  a  public  minister, 
religion.  are  nevertheless  allowed  to  him  by  established  custom  in 
almost  every  country.  One  of  the  principal  of  these  is  the 
free  exercise  of  his  religion.  It  is,  indeed,  highly  proper 
that  a  minister,  and  especially  a  resident  minister,  should 
enjoy  the  free  exercise  of  his  religion  within  his  own  house, 
for  himself  and  his  retinue.  But  it  cannot  be  said  that  this 
right,  like  those  of  independence  and  inviolability,  is  abso- 
lutely necessary  to  the  success  of  his  commission,  particu- 
larly in  the  case  of  a  non-resident  minister,  the  only  one 
whom  nations  are  bound  to  admit  (§  66).  The  minister  may) 

*  Alvakedi's  History  of  the  Conquest  of  Syria, 
t  Ockley's  History  of  the  Saracens,  vol.  i. 
j  Choisy's  History  of  St.  Louis. 

604 


CHAP.   VII. 


IMMUNITIES   OF  AMBASSADORS,   ETC.  484 

in  this  respect,  do  what  he  pleases  in  his  own  house,  into  BOOK  iv. 
which  nobody  has  a  right  to  pry  or  to  enter.  But,  if  the 
sovereign  of  the  country  where  he  resides  should,  for  sub- 
stantial reasons,  refuse  him  permission  to  practise  his  reli- 
gion in  any  manner  which  might  render  it  an  object  of  pub- 
lic notice,  we  must  not  presume  to  condemn  the  conduct  of 
that  sovereign,  much  less  to  accuse  him  of  violating  the  law 
of  nations.  At  present,  ambassadors  are  not  debarred  the 
free  exercise  of  their  religion  in  any  civilized  country :  for  a 
privilege  which  is  founded  on  reason  cannot  be  refused  when 
it  is  attended  with  no  ill  consequence. 

Among  those  rights  that  are  not  necessary  to  the  success  §  105.  Whe- 
of  embassies,  there  are,  on  the  other  hand,  some  which  are ther  an  a™~ 
not  founded  on  a  general  consent  of  nations,  but  which  are  e^pted  ° 
nevertheless,  by  the  custom  of  several  countries,  annexed  to  from  all  im- 
the  ambassadorial  character.     Of  this  number  is  the  ex emp- posts, 
tion  of  things  brought  into  or  sent  out  of  the  country  by  a 
foreign  minister  from  the  customary  duties  on  importation 
and  exportation.     There  is  no  necessity  that  he  should  be 
favoured  with  any  distinction  in  that  respect,  since  his  pay- 
ment of  those  duties  will  not  render  him  the  less  capable  of 
discharging  his  functions.     If  the  sovereign  is  pleased  to 
exempt  him  from  them,  it  is  an  instance  of  civility  which  the 
minister  could  not  claim  as  matter  of  right,  any  more  than 
that  his  baggage,  or  any  chests  or  packages  which  he  imports 
from  abroad,  shall  not   be   searched   at   the  custom-house. 
Thomas  Chaloner,  the  English  ambassador  in  Spain,  sent 
home  a  bitter  complaint  to  Queen  Elizabeth,  his  mistress,  that 
the  custom-house  officers  had   opened   his   trunks   in  order 
to  search  them.     But  the  queen  returned  him  for  answer, 
that  it  was  "the  duty  of  an  ambassador  to  wink  at  every 
thing  which  did  not  directly  offend  the  dignity  of  his  sove- 
reign."* 

The  independency  of  the  ambassador  exempts  him  indeed 
from  every  personal  imposition,  capitation,  or  other  duty  of 
that  nature,  and  in  general  from  every  tax  relating  to  the 
character  of  a  subject  of  the  state.  But  as  for  duties  laid 
on  any  kind  of  goods  or  provisions,  the  most  absolute  inde- 
pendency does  not  exempt  him  from  the  payment  of  them :  + 
even  sovereigns  themselves  are  subject  to  them.  In  Holland, 
the  following  rule  is  observed: — ambassadors  are  exempt 
from  the  taxes  on  consumption, — doubtless,  because  those 
taxes  are  more  directly  of  a  personal  nature :  but  they  pay 
the  duties  on  importation  and  exportation. 

However  extensive  their  exemption  may  be,  it  is  manifest 
that  it  solely  relates  to  things  intended  for  their  own  use. 
Should  they  abuse  and  make  a  shameful  traffic  of  it  by  lend- 
ing their  name  to  merchants,  the  sovereign  has  unquestionably 

*  Wicquefort's  Ambass.  book  i.  g  28,  towards  the  end. 

3A2  605 


485  OF   RIGHTS,    PRIVILEGES,   AND 

BOOK  iv.  a  right  to  put  a  stop  to  the  fraud,  even  by  suppressing  the 
CHAP,  vii.  privilege.  Such  things  have  been  known  in  several  places; 
and  the  sordid  avarice  of  some  ministers,  who  made  a  trade 
of  their  exemption,  has  obliged  the  sovereign  to  deprive 
them  of  it.  At  present,  the  foreign  ministers  at  Peters- 
burgh  are  subject  to  the  duties  on  importation ;  but  the 
empress  has  the  generosity  to  indemnify  them  for  the  loss 
of  a  privilege  which  they  had  no  right  to  claim,  and  which, 
from  the  frequency  of  its  abuse,  she  had  been  obliged  to 
abolish. 

§  106.  Obii-  But,  here  it  is  asked,  whether  a  nation  may  abolish  what 
gation  general  custom  has  established  with  respect  to  foreign  minis- 
use^nd  °n  ters '  ^et  ^  ^^  cons^er  wnat  obligation  custom  and 
custom  received  usage  can  impose  on  nations,  not  only  in  what  con- 
cerns ministers,  but  also  in  any  other  instance,  in  general. 
The  usages  and  customs  of  other  nations  are  no  further  obli- 
gatory on  an  independent  state,  than  as  she  has  expressly  or 
tacitly  given  her  consent  to  them.  But  when  once  a  custom, 
indifferent  in  itself,  has  been  generally  established  and  re- 
ceived, it  carries  the  force  of  an  obligation  on  the  states 
which  have  tacitly  or  expressly  adopted  it.  Nevertheless,  if, 
in  process  of  time,  any  nation  perceives  that  such  custom  is 
attended  with  inconveniences,  she  is  at  liberty  to  declare  that 
she  no  longer  chooses  to  conform  to  it :  and  when  once  she 
has  made  this  explicit  declaration,  no  cause  of  complaint  lies 
against  her  for  refusing  thenceforward  to  observe  the  custom 
in  question.  But  such  a  declaration  should  be  made  before- 
hand, and  at  the  time  when  it  does  not  affect  any  particular 
nation :  it  is  too  late  to  make  it  when  the  case  actually  exists : 
for  it  is  a  maxim  universally  received,  that  a  law  must  never 
be  changed  at  the  moment  of  the  actual  existence  of  the 
particular  case  to  which  we  would  apply  it.  Thus,  on  the 
subject  before  us,  a  sovereign  who  has  previously  notified  his 
intentions,  and  received  an  ambassador  only  on  that  footing, 
is  not  obliged  to  allow  him  the  enjoyment  of  all  the  privi- 
leges, or  to  pay  him  all  the  honours,  which  custom  had  before 
annexed  to  the  ambassadorial  character, — provided  that  the 
privileges  and  honours  which  are  withheld  be  not  essential  to 
the  nature  of  the  embassy,  and  necessary  to  insure  its  legiti- 
mate success.  To  refuse  privileges  of  this  latter  kind,  would 
be  the  same  thing  in  effect  as  refusing  the  embassy  itself, — a 
conduct  which  a  state  is  not  at  liberty  to  pursue  generally 
and  on  every  occasion  (§  65),  but  in  those  instances  only 
where  the  refusal  is  founded  on  some  very  substantial  reason 
To  withhold  honours  which  are  consecrated  by  custom  and 
become  in  •  a  manner  essential,,  is  an  expression  of  contempt, 
and  an  actual  injury. 

Here  it  must  be  further  observed,  that,  when  a  sovereign 
intends  to  break  through  an  established  custom,  the  rule 
should  be  general.  To  refuse  certain  customary  honours  or 

606 


IMMUNITIES   OF  AMBASSADORS,   ETC.  485 

privileges  to  the  ambassador  of  one  nation,  and  to  continue  BOOK  iv. 
the  enjoyment  of  them  to  others,  is  an  affront  to  that  nation,  CHAP-  Tn- 
a  mark  of  contempt,  or  at  least  of  ill-will. 

Sometimes  princes  send  to  each  other  secret  ministers,  g  ior.   A 
whose  character  is  not  public.     If  a  minister  of  this  kind  be  mmlster 
insulted  by  a  person  unacquainted  with  his  character,  such  J^™"  £  ^t 
insult  is  no  violation  of  the  law  of  nations :  but  the  prince  public, 
who  receives  this  ambassador  and  knows  him  to  be  a  public 
minister,  is  bound  by  the  same  ties  of  duty  towards  him  as  [  486  ] 
towards   a   publicly  acknowledged   ambassador,    and   under 
equal  obligation  to  protect  him,  and  as  far  as  in  his  power, 
to  insure  him  the  full  enjoyment  of  that  inviolability  and 
independence  which  the  law  of  nations  annexes  to  the  am- 
bassadorial character.     No  excuse,  therefore,  can  be  offered 
for  the  conduct  of  Francis  Sforza,  duke  of  Milan,  in  putting 
to  death  Maraviglia,  secret  minister  of  Francis  the  First. 
Sforza  had  often  treated  with  that  secret  agent,  and  had 
acknowledged  him  as  the  French  monarch's  minister.* 

We  cannot  introduce  in  any  more  proper  place  an  im-  g  108.  A 
portant  question  of  the  law  of  nations,  which  is  nearly  allied  sovereign  in 
to  the  right  of  embassies.  It  is  asked,  what  are  the  rights  ^°^n 
of  a  sovereign,  who  happens  to  be  in  a  foreign  country,  and  c°un  ry- 
how  the  master  of  the  country  is  to  treat  him  ?  If  that  prince 
be  come  to  negotiate,  or  to  treat  about  some  public  affair,  he 
is  doubtless  entitled  in  a  more  eminent  degree  to  enjoy  all 
the  rights  of  ambassadors.  If  he  be  come  as  a  traveller,  his 
dignity  alone,  and  the  regard  due  to  the  nation  which  he  re- 
presents and  governs,  shelters  him  from  all  insult,  gives  him 
a  claim  to  respect  and  attention  of  every  kind,  and  exempts 
him  from  all  jurisdiction.  On  his  making  himself  known,  he 
cannot  be  treated  as  subject  to  the  common  laws ;  for  it  is 
not  to  be  presumed  that  he  has  consented  to  such  a  subjec- 
tion :  and  if  a  prince  will  not  suffer  him  in  his  dominions  on 
that  footing,  he  should  give  him  notice  of  his  intentions. 
But,  if  the  foreign  prince  forms  any  plot  against  the  safety 
and  welfare  of  the  state, — in  a  word,  if  he  acts  as  an  enemy, 
— he  may  very  justly  be  treated  as  such.  In  every  other 
case  he  is  entitled  to  full  security,  since  even  a  private  indi- 
vidual of  a  foreign  nation  has  a  right  to  expect  it. 

A  ridiculous  notion  has  possessed  the  minds  even  of  per- 
sons who  deem  themselves  superior  in  understanding  to  the 
common  herd  of  mankind.  They  think  that  a  sovereign  who 
enters  a  foreign  country  without  permission,  may  be  arrested 
there. f  But  on  what  reason  can  such  an  act  of  violence  be 

*  See  the  Memoirs  of  Martin  Du  Gramond's  Hist.  Gall.  lib.  xii.  The 

Bellay,  book  iv.,  and  Father  Daniel's  Cardinal  De  Richelieu  also  alleged 

History  of  France,  vol.  v.  p.  300,  this  trifling  reason,  when  he  gave 

<fce.  orders  for  arresting  Charles  Lewis, 

•f  It  is  surprising  to  see  a  grave  the  elector  Palatine,  who  had  attempt- 
historian  give  into  this  opinion.  See  ed  to  pass  through  France  incognito: 

607 


486 


OF   RIGHTS,    PRIVILEGES,    AND 


BOOK  iv.  grounded?  The  absurdity  of  the  doctrine  carries  its  own 
_CHAP.  YII.  refutation  on  the  face  of  it.  A  foreign  sovereign,  it  is  true, 
ought  to  give  notice  of  his  coming,  if  he  wishes  to  receive 
such  treatment  as  he  is  entitled  to  expect.  It  would,  more- 
over, be  prudent  in  him  to  make  application  for  passports,  in 
order  that  designing  malevolence  may  not  have  any  pretext, 
any  hope  of  finding  specious  ^reasons  to  palliate  an  act  of 
[  487  ]  injustice  and  violence.  I  further  allow,  that, — as  the  pre- 
sence of  a  foreign  sovereign  may  on  certain  occasions  be  pro- 
ductive of  serious  consequences, — if  the  times  are  in  anywise 
critical,  and  the  motives  of  his  journey  liable  to  suspicion, 
he  ought  not  to  undertake  it  without  the  consent  and  appro- 
bation of  the  prince  whose  territories  he  means  to  enter. 
When  Peter  the  Great  determined  personally  to  visit  foreign 
countries  in  quest  of  the  arts  and  sciences  to  enrich  his  empire, 
he  travelled  in  the  retinue  of  his  own  ambassadors. 

A  foreign  prince  unquestionably  retains  all  his  rights  over 
his  own  state  and  subjects,  and  may  exercise  them  in  every 
instance  that  does  not  affect  the  sovereignty  of  the  country 
in  which  he  is  a  sojourner.  The  king  of  France,  therefore, 
appears  to  have  been  too  punctilious  in  refusing  to  permit 
the  emperor  Sigismund,  when  at  Lyons,  to  confer  the  dig- 
nity of  duke  on  the  count  of  Savoy,  who  was  a  vassal  of  the 
empire  (see  Book  II.  §  40).  Less  difficulty  would  have  been 
made  with  any  other  prince :  but  the  court  was  scrupulously 
careful  to  guard  against  the  old  claims  of  the  emperors.  On 
the  other  hand,  it  was  with  very  good  reason  that  the  same 
court  expressed  considerable  displeasure  at  the  conduct  of 
Queen  Christina,  who,  whilst  residing  in  France,  caused  one 
of  her  domestics  to  be  executed  in  her  own  house:  for  an 
execution  of  that  kind  is  an  act  of  territorial  jurisdiction : 
and  besides,  Christina  had  abdicated  the  crown.  Her  re- 
servations, her  birth,  her  dignity,  might  indeed  entitle  her  to 
great  honours,  or,  at  most,  to  an  entire  independence, — but 
not  to  all  the  rights  of  an  actual  sovereign.  The  famous 
instance  of  Mary  Queen  of  Scots,  so  often  quoted  on  ques- 
tions on  this  subject,  is  not  a  very  apposite  example:  for 
that  princess  was  no  longer  in  possession  of  the  crown  at  the 
time  when  she  came  to  England,  and  was  arrested,  tried,  and 
condemned  to  death. 

g  109.   De-      The  deputies  sent  to  the  assembly  of  the  states  of  a  king- 

puties  to  the  dom,  or  a  republic,  are  not  public  ministers  like  those  of 

ltes'         whom  we  have  spoken  above,  as  they  are  not  sent  to  foreign 


he  said,  that  "no  foreign  prince  was  pretended  to  have  a  greater  right  than 
permitted  to  pass  through  the  kingdom  any  other  power,  because  those  con- 
without  a  passport"  But  he  added  quests  had  been  made  with  the  money 
better  reasons,  drawn  from  the  prince  furnished  by  that  kingdom.  See  the 
Palatine's  designs  against  Brissac  and  History  of  the  Treaty  of  Westphalia, 
the  other  places  left  by  Bernard,  duke  by  Father  Bougant,  vol.  ii.  in  12mo. 
of  Saxe-Weymar,  and  to  which  France  p.  88. 


IMMUNITIES   OF  AMBASSADORS,   ETC.  487 

powers:  but  they  are  public  persons,  and  in  that  character  BOOK  rr. 
are  possessed  of  privileges  which  it  is  our  duty  to  establish  CHAP-  vn- 
before  we  take  leave  of  this  subject.  The  states  which  have 
a  right  to  meet  by  deputies  for  the  purpose  of  deliberating 
on  public  affairs,  are,  from  that  very  circumstance,  entitled 
to  demand  perfect  security  for  their  representatives,  together 
with  every  exemption  and  immunity  that  is  necessary  to  the 
free  discharge  of  their  functions.  If  the  persons  of  the  de- 
puties be  not  inviolable,  their  constituents  cannot  be  assured 
of  their  fidelity  in  asserting  the  rights  of  the  nation  and 
courageously  defending  the  public  interests.  And  how  could 
those  representatives  duly  acquit  themselves  of  their  func- 
tions, if  people  were  allowed  to  molest  them  by  arrests,  either 
for  debt  or  for  ordinary  offences  ?  Between  the  nation  and 
the  sovereign,  in  this  case,  the  same  reasons  hold  good,  on 
which,  between  state  and  state,  the  immunities  of  ambassa- 
dors are  founded.  We  may  therefore  safely  venture  to  as- 
sert, that  the  rights  of  the  nation,  and  the  public  faith,  secure 
those  deputies  from  violence  of  every  kind,  and  even  from 
any  judicial  prosecution,  during  the  term  of  their  ministry. 
Such  indeed  is  the  rule  observed  in  all  countries,  and  par-  [  488  ] 
ticularly  at  the  diets  of  the  empire,  the  parliaments  of  Eng- 
land, and  the  cortes  of  Spain.  Henry  the  Third,  of  France, 
caused  the  duke  and  the  Cardinal  de  Guise  to  be  killed  at 
the  meeting  of  the  states  at  Blois.  Unquestionably  the  se- 
curity of  the  assembly  was  violated  by  that  action :  but  those 
two  princes  were  factious  rebels,  whose  audacious  views  aimed 
at  nothing  less  than  depriving  their  sovereign  of  his  crown. 
And  if  it  was  equally  certain  that  Henry  was  no  longer  pos- 
sessed of  sufficient  power  to  bring  them  to  a  formal  trial,  and 
punish  them  according  to  the  laws,  the  necessity  of  justifiable 
self-defence  gave  the  king  a  right  to  adopt  the  mode  which 
he  pursued,  and  furnishes  a  sufficient  apology  for  his  conduct. 
It  is  the  misfortune  of  weak  and  unskilful  princes,  that  they 
suffer  themselves  to  be  reduced  to  extremities,  from  which 
they  cannot  extricate  themselves  without  a  violation  of  every 
established  rule.  It  is  said  that  Pope  Sextus  the  Fifth,  on 
hearing  of  the  catastrophe  of  the  Duke  de  Guise,  commended 
that  resolute  act  as  a  necessary  stroke  of  policy ;  but  when 
he  was  told  that  the  cardinal  had  likewise  been  killed,  he 
burst  into  a  violent  paroxysm  of  rage.*  This,  indeed,  was 
carrying  his  haughty  pretensions  to  an  excessive  height. 
The  pontiff  readily  allowed  that  urgent  necessity  had  au- 
thorized *Henry  to  violate  the  security  of  the  states,  and  to 
break  through  all  the  forms  of  justice :  and  could  he  pretend 
that  this  prince,  rather  than  be  deficient  in  respect  for  the 
Roman  purple,  should  risk  both  his  crown  and  his  life  ? 

*  See  the  French  historians. 
77  609 


488  OF   THE   JUDGE   OF   AMBASSADORS 


BOOK   IV. 
CHAP.   Till. 


CHAP.  VIII. 

OF   THE  JUDGE    OF   AMBASSADORS   IN  CIVIL  CASES. 

§  no.  The  SOME  authors  will  have  an, ambassador  to  be  subject,  in 
ambassador  civil  cases,  to  the  jurisdiction  of  the  country  where  he  re- 
from^he k  s^es> — at  *east  *n  suc^  cases  as  ^ave  ar^sen  during  the  time 
ci°u  juris-  °f  his  embassy ;  and,  in  support  of  their  opinion,  they  allege 
diction  of  that  this  subjection  is  by  no  means  derogatory  to  the  am- 
the country  bassadorial  character:  "for,"  say  they,  "however  sacred  a 
w^e  be  person  may  be,  his  inviolability  is  not  affected  by  suing  him 
in  a  civil  action."  But  it  is  not  on  account  of  the  sacred- 
ness  of  their  person  that  ambassadors  cannot  be  sued :  it  is 
because  they  are  independent  of  the  jurisdiction  of  the  coun- 
try to  which  they  are  sent ;  and  the  substantial  reasons  on 
which  that  independency  is  grounded  may  be  seen  in  a  pre- 
ceding part  of  this  work  (§  92).  Let  us  here  add,  that  it  is 
in  every  respect  highly  proper,  and  even  necessary,  that  an 
ambassador  should  be  exempt  from  judicial  prosecution  even 
in  civil  causes,  in  order  that  he  may  be  free  from  molestation 
in  the  exercise  of  his  functions.  For  a  similar  reason,  it  was 
not  allowed,  among  the  Romans,  to  summon  a  priest  while 
[  489  ]  he  was  employed  in  his  sacred  offices  :*  but  at  other  times 
he  was  open  to  the  law.  The  reason  which  we  have  here 
alleged  for  the  exemption  is  also  assigned  in  the  Roman  law : 
"Ideo  enim  non  datur  actio  (adversus  legatum)  ne  ab  officio 
suscepto  legationis  avocetur^  ne  impediatur  legatio^"  But 
there  was  an  exception  as  to  those  transactions  which  had 
taken  place  during  the  embassy.  This  was  reasonable  with 
regard  to  those  legati,  or  ministers,  of  whom  the  Roman  law 
here  speaks,  who,  being  sent  only  by  nations  subject  to  the 
empire,  could  not  lay  claim  to  the  independency  enjoyed  by 
a  foreign  minister.  As  they  were  subjects  of  the  state,  the 
legislature  was  at  liberty  to  establish  whatever  regulations  it 
thought  most  proper  respecting  them:  but  a  sovereign  has 
not  the  like  power  of  obliging  the  minister  of  another  sove- 
reign to  submit  to  his  jurisdiction :  and  even  if  such  power 
was  vested  in  him  by  convention,  or  otherwise,  the  exercise 
of  it  would  be  highly  improper :  because,  under  that  pretext, 
the  ambassador  might  be  often  molested  in  his  ministry,  and 
the  state  involved  in  very  disagreeable  quarrels,  for  the  tri- 
fling concerns  of  some  private  individuals,  who  might  and 
ought  to  have  taken  better  precautions  for  their  own  security. 
It  is,  therefore,  only  in  conformity  to  the  mutual  duties 

*  Nee     pontificem    (in    jus     vocari  f  Digest   lib.  v.  tit  1,  de  Judiciia, 

oportet)  dum  sacra  facit     Digest,  lib.  Ac.  leg.  24,  §  2. 

ii.  tit  4.    De  in  Jus  vocando,  leg.  2.  \  Ibid.  leg.  xxvi. 
010 


IN   CIVIL    CASES.  489 

which  states  owe  to  each  other,  and  in  accordance  with  the  BOOK  nr. 
grand  principles  of  the  law  of  nations,  that  an  ambassador  CHAP-  YIir-_ 
or  public  minister  is  at  present,  by  the  universal  custom  and 
consent  of  nations,  independent  of  all  jurisdiction  in  the 
country  where  he  resides,  either  in  civil  or  criminal  cases. 
I  know  there  have  occurred  some  instances  to  the  contrary ; 
but  a  few  facts  do  not  establish  a  custom :  on  the  contrary, 
those  to  which  I  allude,  only  contribute,  by  the  censure 
passed  on  them,  to  prove  the  custom  such  as  I  have  asserted 
it  to  be.  In  the  year  1668,  the  Portuguese  resident  at  the 
Hague  was,  by  an  order  of  the  court  of  justice,  arrested  and 
imprisoned  for  debt.  But  an  illustrious  member  of  the  same 
court*  very  justly  thinks  that  the  procedure  was  unjustifiable, 
and  contrary  to  the  law  of  nations.  In  the  year  1657,  a 
resident  of  the  elector  of  Brandenburg  was  also  arrested  for 
debt  in  England.  But  he  was  set  at  liberty,  as  having  been 
illegally  arrested ;  and  even  the  creditors  and  officers  of  jus- 
tice who  had  offered  him  that  insult  were  punished,  f 

But  if  an  ambassador  chooses  to  renounce  a  part  of  his  §  m.   How 
independency,  and  to  subject  himself  in  civil  affairs  to  thehema7vo~ 
jurisdiction  of  the  country,  he   is   undoubtedly  at  Wberty 
to  do  so,   provided  it  be  done  with  his  master's  consent.  geif  to  it 
Without  such  consent,  the  ambassador  has  no  right  to  re- 
nounce privileges  in  which  the  dignity  and  service  of  his 
sovereign  are  concerned, — which  are  founded  on  the  master's 
rights,  and  instituted  for  his  advantage,  not  for  that  of  the  [  490  ] 
minister.     It  is  true,  indeed,  that  the  ambassador,  without 
waiting   for   his   sovereign's    permission,    acknowledges   the 
jurisdiction  of  the  country  when  he  commences  a  suit  as 
plaintiff  in  a  court  of  justice.     But  the  consequence,  in  that 
case,  is  inevitable ;  and  besides,  in  a  civil  cause,  on  a  point 
of  private  interest,  no  inconvenience  attends  it ;  since  the 
ambassador  has  it  at  all  times  in  his  power  to  avoid  com- 
mencing a  suit,  or  may,  if  such  a  step  be  necessary,  intrust 
the  prosecution  of  his  cause  to  an  attorney  or  lawyer. 

Let  us  here  add,  by  the  way,  that  an  ambassador  ought 
never  to  institute  a  prosecution  on  a  criminal  charge.  If 
he  has  been  insulted,  he  should  make  his  complaint  to  the 
sovereign ;  and  the  delinquent  is  to  be  prosecuted  by  the 
public. 

It  may  happen  that  the  minister  of  a  foreign  power  is  at  §  112.   A 
the  same  time  a  subject  of  the  state  where  he  is  employed ;  "j^J6* 
and  in  this  case,  as  a  subject,  he  is  unquestionably  under  ^ject'of 
the  jurisdiction  of  the  country  in  every  thing  which  does  not  the  state 
directly  relate  to  his  ministry.     But  the  question  is,  to  de-  where  ho  is 

. employed. 

*  M.  de  Bynkershoek's  Competent  his  creditors,  and  refused  a  passport  by 
Judge  of  Ambassadors,  chap.  xiii.  £  1.  the  French  court.  See  Journal  Poli- 

f  Ibid.— It  is  not  long  since  the  world    tique  de  Bouillon,  Feb.  1,  1771,  p.  54, 
witnessed  the  circumstance  of  a  foreign     and  Jan.  15,  p.  57. 
minister  in  France  being  pursued  by 

611 


490  OF  THE   JUDGE   OF  AMBASSADORS 

BOOK  iv.  termine  in  what  cases  those  two  characters,  of  subject  and 
CHA*;,VI11-,. foreign  minister,  are  united  in  the  same  person.  To  produce 
such  union,  it  is  not  sufficient  that  the  minister  was  born  a 
subject  of  the  state  to  which  he  is  sent ;  for  unless  the  laws 
expressly  prohibit  every  citizen  to  leave  his  country,  he  may 
legally  have  renounced  his  country,  and  placed  himself  in 
subjection  to  a  new  master.  He  may,  likewise,  without  re- 
nouncing his  country  for  ever,  become  independent  of  it 
during  the  whole  time  that  he  spends  in  the  service  of  a 
foreign  prince ;  and  the  presumption  is  certainly  in  favour 
of  such  independency :  for  the  state  and  functions  of  a  pub- 
lic minister  naturally  require  that  he  should  depend  only  on 
his  master  (§  92),  on  the  prince  who  has  intrusted  him  with 
the  management  of  his  affairs.  Whenever,  therefore,  there 
does  not  exist  any  circumstance  which  furnishes  a  proof  or 
indication  to  the  contrary,  a  foreign  minister,  though  ante- 
cedently a  subject  of  the  state,  is  reputed  to  be  absolutely 
independent  of  it  during  the  whole  time  of  his  commission. 
If  his  former  sovereign  does  not  choose  to  allow  him  such 
independency  in  his  dominions,  he  may  refuse  to  admit  him 
in  the  character  of  a  foreign  minister,  as  is  the  practice  in 
France,  where,  according  to  Monsieur  De  Callieres,  "the  king 
no  longer  receives  any  of  his  own  subjects  as  ministers  of 
foreign  princes."* 

But  a  subject  of  the  state  may  still  continue  its  subject, 
notwithstanding  his  acceptance  of  a  commission  from  a  fo- 
reign prince.  His  subjection  is  expressly  established  when 
the  sovereign  acknowledges  him  as  minister  only,  with  a 
reserve  that  he  shall  remain  a  subject  of  the  state.  The 
states-general  of  the  United  Provinces,  in  a  decree  of  the 
[  491  ]  19th  of  June,  1681,  declare,  "  That  no  subject  of  the  state 
shall  be  received  as  ambassador  or  minister  of  another  power, 
but  on  condition  that  he  shall  not  divest  himself  of  his  cha- 
racter of  subject,  even  with  regard  to  jurisdiction  both  in 
civil  and  criminal  affairs, — and  that  whoever,  in  making 
himself  known  as  ambassador  or  minister,  has  not  mentioned 
his  quality  of  subject  of  the  state,  shall  not  enjoy  those 
rights  or  privileges  which  peculiarly  belong  to  the  ministers 
of  foreign  power s."f 

Such  a  minister  may  likewise  retain  his  former  subjection 
tacitly ;  and  then,  by  a  natural  consequence,  drawn  from  his 
actions,  state,  and  whole  behaviour,  it  is  known  that  he  con- 
tinues a  subject.  Thus,  independent  of  the  declaration  above 
mentioned,  those  Dutch  merchants  who  obtain  the  title  of 
residents  of  certain  foreign  princes,  and  nevertheless  continue 
to  carry  on  their  commerce,  thereby  sufficiently  denote  that 
they  remain  subjects.  Whatever  inconveniences  may  attend 

*  Manner  of  Negotiating  with  Sovereigns,  chap.  vi. 
t  Bynkershoek,  ubi  supra,  chap.  x; 
612 


IN   CIVIL   CASES.  491 

the  subjection  of  a  minister  to  the  sovereign  with  whom  he    BOOK  iv. 
resides,  if  the  foreign  prince  chooses  to  acquiesce  in  such  a  cnAP'  Ym'. 
state  of  things,  and  is  content  to  have  a  minister  on  that 
footing,  it  is  his  own  concern ;  and  should  his  minister,  on 
any  ignominious  occasion,  be  treated  as  a  subject,  he  has  no 
cause  of  complaint. 

It  may  likewise  happen  that  a  foreign  minister  shall  become 
a  subject  of  the  sovereign  to  whom  he  is  sent,  by  accepting 
of  a  post  under  him :  and  in  this  case  he  cannot  lay  claim 
to  independence,  except  in  such  things  alone  as  directly  re- 
late to  his  ministry.  The  prince  by  whom  he  is  delegated, 
in  allowing  of  this  voluntary  subjection,  agrees  to  risk  the 
inconveniences  that  attend  it.  Thus,  in  the  last  century,  the 
baron  De  Charnace'  and  the  count  D'Estrades  were  ambas- 
sadors from  France  to  the  States  General,  and  at  the  same 
time  officers  in  their  high  mightinesses'  army. 

The  independency  of  a  public  minister  is  the  true  reason  §  us.   Im- 
of  his   exemption   from  the  jurisdiction  of  the  country  inmunit7°f 
which  he  resides.     No  legal  process  can  be  directly  issued th<;  minif er 

,  ,  .        ,  ,      .  e     ,  r   ,.      .         ,,  ,.       ..*     f    ,     extends  to 

against  him,  because  he  is  not  subject  to  the  authority  of  the  Ua  pro. 
prince  or  the  magistrates.  But  it  is  asked  whether  thatperty. 
exemption  of  his  person  extends  indiscriminately  to  all  his 
property  ?  In  order  to  solve  this  question,  we  must  consider 
by  what  circumstances  property  may  be  subjected  to,  and  by 
what  others  it  may  be  exempted  from,  the  jurisdiction  of  a 
country.  In  general,  whatever  lies  within  the  extent  of  a 
country,  is  subject  to  the  authority  and  jurisdiction  of  the 
sovereign  (Book  I.  §  205,  and  Book  II.  §§  83,  84).  If  any 
dispute  arises  concerning  effects  or  goods  within  or  passing 
through  the  country,  it  is  to  be  decided  by  the  judge  of  the 
place.  In  virtue  of  this  dependence,  the  mode  of  stoppage 
or  seizure  has  been  established  in  many  countries,  for  the 
purpose  of  compelling  a  foreigner  to  repair  to  the  spot  where 
the  seizure  has  been  made,  and  there  to  answer  questions  that 
are  to  be  put  to  him,  though  not  directly  relating  to  the  [  492  ] 
effects  seized.  But  a  foreign  minister,  as  we  have  already 
shown,  is  independent  of  the  jurisdiction  of  the  country ; 
and  his  personal  independence  in  civil  cases  would  be  of 
little  avail,  unless  it  extended  te  every  thing  which  he  finds 
necessary  in  order  to  enable  him  to  live  with  dignity,  and 
quietly  to  attend  to  the  discharge  of  his  functions.  Besides, 
whatever  he  has  brought  with  him,  or  purchased  for  his  own 
use  as  minister,  is  so  connected  with  his  person  as  to  partake 
of  the  same  fate  with  it.  Since  the  minister  entered  the 
territory  on  the  footing  of  independence,  he  could  not  have 
it  in  contemplation  to  subject  his  retinue,  his  baggage,  or 
his  necessaries,  to  the  jurisdiction  of  the  country.  Every 
thing,  therefore,  which  directly  belongs  to  his  person  in  the 
character  of  a  public  minister, — every  thing  which  is  intend- 
ed for  his  use,  or  which  serves  for  his  own  maintenance  and 

SB  613 


492  OF  THE  JUDGE   OF  AMBASSADORS. 

BOOK  iv.    that  of  his  household, — every  thing  of  that  kind,  I  say, 
CHAP,  vnr.  partakes  of  the  minister's  independency,  and  is  absolutely 
exempt  from  all  jurisdiction  in  the  country.     Those  things, 
together  with  the  person  to  whom   they  belong,  are  consi- 
dered as  being  out  of  the  country. 

§114.  The  But  this  exemption  cannot  evxtend  to  such  property  as 
QnofcT  ev*dently  belongs  to  the  ambassador  under  any  other  rela- 
tendtoef-  ^on  ^&n  that  of  minister.  What  has  no  affinity  with  his 
fectsbe-  functions  and  character  cannot  partake  of  the  privileges 
longing  to  which  are  solely  derived  from  his  functions  and  character. 
the7 Sister  Should  a  minister,  therefore,  (as  it  has  often  been  the  case,) 
may  carry  embark  in  any  branch  of  commerce,  all  the  effects,  goods, 
on;  money,  and  debts,  active  and  passive,  which  are  connected 

with  his  mercantile  concerns, — and  likewise  all  contests  and 
lawsuits  to  which  they  may  give  rise, — fall  under  the  juris- 
diction of  the  country.  And  although,  in  consequence  of 
the  minister's  independency,  no  legal  process  can,  in  those 
lawsuits,  be  directly  issued  against  his  person,  he  is,  never- 
theless, by  the  seizure  of  the  effects  belonging  to  his  com- 
merce, indirectly  compelled  to  plead  in  his  own  defence. 
The  abuses  which  would  arise  from  a  contrary  practice  are 
evident.  What  could  be  expected  from  a  merchant  vested 
with  a  privilege  to  commit  every  kind  of  injustice  in  a  foreign 
country  ?  There  exists  not  a  shadow  of  reason  for  extend- 
ing the  ministerial  immunity  to  things  of  that  nature.  If 
the  sovereign  who  sends  a  minister  is  apprehensive  of  any 
inconvenience  from  the  indirect  dependency  in  which  his 
servant  thus  becomes  involved,  he  has  only  to  lay  on  him  his 
injunctions  against  engaging  in  commerce, — an  occupation, 
indeed,  which  ill  accords  with  the  dignity  of  the  ministerial 
character. 

To  what  we  have  said,  let  us  add  two  illustrations : — 
1.  In  doubtful  cases,  the  respect  due  to  the  ministerial  cha- 
racter requires  that  things  should  always  be  explained  to  the 
advantage  of  that  character.  I  mean  that,  when  there  is 
room  for  doubt  whether  a  thing  be  really  intended  for  the 
use  of  the  minister  and  his  household,  or  whether  it  belongs 
to  his  commerce,  the  decision  must  be  given  in  favour  of 
the  minister:  otherwise  there  would  be  a  risk  of  violating 
his  privileges.  2.  When  I  say  that  we  may  seize  such  of  the 
[  493  ]  minister's  effects  as  have  no  relation  to  his  public  character, 
particularly  those  that  belong  to  his  commercial  concerns, 
this  is  to  be  understood  only  on  the  supposition  that  the 
seizure  be  not  made  for  any  cause  arising  from  his  transac- 
tions in  quality  of  minister,  as,  for  instance,  articles  supplied 
for  the  use  of  his  family,  house-rent,  etc.,  because  any  claims 
which  may  lie  against  him  in  that  relation  cannot  be  decided 
in  the  country,  and  consequently  cannot  be  subjected  to  its 
jurisdiction  by  the  indirect  mode  of  seizure. 

614 


IN  CIVIL   CASES.  493 

All  landed  estates,  all  immovable  property,  by  whomsoever    BOOK  iv. 
possessed,  are   subject   to   the  jurisdiction  of  the   country  CHAF"  Tm- 
(Book  I.  §  205,  and  Book  II.  §§  83,  84).     Are  they  to  be  $  us.  nor 
exempted  from  it  on  the  single  ground  that  their  owner  has  *°  i1111110^- 
been  appointed  ambassador  by  a  foreign  power?     There  canable,p.™p!r~ 

rr  *.,        -i  T    .  •     ty  which  he 

exist  no  reason  for  the  exemption  in  such  case.  It  is  not  in  possesses  in 
his  public  character  that  the  ambassador  possesses  that  pro-  the  country, 
perty ;  nor  is  it  attached  to  his  person,  so  as,  like  himself,  to  (201) 
be  reputed  out  of  the  territory.  If  the  foreign  prince  appre- 
hends any  ill  consequences  from  that  state  of  dependency  in 
which  his  minister  may  stand  on  account  of  some  of  his  pos- 
sessions, he  may  make  choice  of  another  person  to  fill  the 
office.  Let  us  conclude,  therefore,  that  immovable  property 
possessed  by  a  foreign  minister  does  not  change  its  nature  in 
consequence  of  the  character  conferred  on  the  owner,  but  con- 
tinues subject  to  the  jurisdiction  of  the  state  in  which  it  lies. 
All  contests  and  lawsuits  concerning  that  property  are  to  be 
carried  before  the  tribunals  of  the  country ;  and  those  same 
tribunals  may  decree  its  seizure  in  order  to  satisfy  any  legal 
claim.  It  is,  however,  easily  conceived,  that,  if  the  ambas- 
sador lives  in  a  house  of  his  own,  that  house  is  excepted  from 
the  rule,  as  actually  serving  for  his  immediate  use ; — it  is 
excepted,  I  mean,  in  whatever  may  affect  the  present  use 
which  the  ambassador  makes  of  it.  (201) 

It  may  be  seen,  in  Monsieur  de  Bynkershoek's  treatise,* 
that  custom  coincides  with  the  principles  laid  down  in  this 
and  the  preceding  sections.  In  suing  an  ambassador  in 
either  of  the  two  cases  just  mentioned, — that  is  to  say,  on 
the  subject  of  any  immovable  property  lying  in  the  country, 
or  of  movable  effects  which  have  no  connection  with  the 
embassy, — the  ambassador  is  to  be  summoned  in  the  same 
manner  as  an  absent  person,  since  he  is  reputed  to  be  out  of 
the  country,  and  his  independency  does  not  permit  any  im- 
mediate address  to  his  person  in  an  authoritative  manner, 
such  as  sending  an  officer  of  a  court  of  justice  to  him. 

By  what  mode,  then,  may  satisfaction  be  obtained  of  an  g  lie.  How 
ambassador  who  refuses  to  do  justice  to  those  who  have  deal-  justice  may 
ings  with  him  ?     It  is  asserted  by  many  that  he  must  be be  °btamed 
sued  before  the  tribunal  to  whose  jurisdiction  he  was  subject  ambassador, 
antecedently  to   his   appointment  as  ambassador.     In  this 
there  appears  to  me  an  impropriety.     If  the  necessity  and 
importance  of  his  functions  set  him  above  all  prosecution  in 
the  foreign   country  where  he   resides,  shall   any  man  be 
allowed  to  molest  him  in  the  performance  of  his  ministerial  [  494  ] 
duties  by  summoning  him  to  appear  before  the  tribunals  of 
his  own  country  ?     The  interest  of  the  public  service  forbids 

(201)  As  to  this  point,  and  the  exemption  from  a  distress,  see  Novella  v.  Toogood, 
1  Barn.  A  Cress.  554-2 ;  Dowl.  &  Ry.  833,  S.  C.— C. 

*  On  the  competent  Judge  of  Ambassadors,  chap.  xvi.  §  6. 

615 


494  OF  THE  AMBASSADOR'S  HOUSE. 

BOOK  IT.  such  a  procedure.  It  is  absolutely  necessary  that  the  minis- 
CHAP.  YIII.  j.er  ghoui^  solely  depend  on  his  sovereign,  to  whom  he  be- 
longs in  a  peculiar  manner.  He  is  an  instrument  in  the 
hand  of  the  conductor  of  the  nation ;  and  no  circumstance 
whatever  ought  to  be  permitted  to  divert  or  obstruct  his  ser- 
vices. Neither  would  it  be  just  that  the  absence  of  a  person 
who  is  intrusted  with  the  interests  of  the  sovereign  and  the 
nation  should  prove  detrimental  to  him  in  his  private  con- 
cerns. In  all  countries,  those  who  are  absent  on  the  service 
of  the  state  enjoy  privileges  which  secure  them  from  the  in- 
conveniences attendant  on  the  state  of  absentees.  But  these 
privileges  of  the  ministers  of  the  state  should,  as  far  as  pos- 
sible, be  so  modelled  and  tempered  as  not  to  be  unreasonably 
burdensome  or  injurious  to  private  persons  who  have  dealings 
with  them.  How  then  arc  those  different  interests — the  ser- 
vice of  the  state  and  the  administration  of  justice — to  be  re- 
conciled ?  All  private  persons,  whether  citizens  or  foreign- 
ers, who  have  any  demands  against  a  minister — if  they  can- 
not obtain  satisfaction  from  himself — should  apply  to  his 
master,  who  is  obliged  to  do  them  justice  in  such  manner  as 
may  be  most  consistent  with  the  public  service.  It  rests  with 
the  prince  to  determine  whether  it  be  most  proper  to  recall 
his  minister,  to  appoint  a  tribunal  before  which  he  may  be 
sued,  or  to  order  an  adjournment  of  the  cause,  &c.  In  a 
word,  the  good  of  the  state  does  not  allow  that  any  person 
whatever  should  have  it  in  his  power  to  disturb  the  minister 
in  his  functions,  or  to  divert  his  attention  from  them  without 
the  sovereign's  permission;  and  the  sovereign,  whose  duty 
it  is  to  distribute  impartial  and  universal  justice,  ought  not  to 
countenance  his  minister  in  refusing  it  or  wearying  out  his 
adversaries  by  unjust  delays. 


CHAP.  IX.  CHAP.   IX 

OF  THE  AMBASSADOR'S  HOUSE  AND  DOMESTICS. 

g  117.   The      THE  independency  of  the  ambassador  would  be  very  im- 
ambasaa-     perfect,  and  his  security  very  precarious,  if  the  house  in 
(202*  h°™e'  w^c^  ke  lives  were  not  to  enjoy  a  perfect  immunity,  and  to 
be  inaccessible  to  the  ordinary  officers  of  justice.     The  am- 
bassador might  be  molested  under  a  thousand  pretexts ;  his 
secrets  might  be  discovered  by  searching  his  papers,  and  his 

(262)  How  far  exempt  from  a  dis-    lord  of  a  house  tenanted   by  an  am- 
tress,  see  Novello  y.  Toogood,  1  Barn,    bassador  to  tho  payment  of  poor-rates 
A  Cres.  554,  2  Dowl.  &  R.  833,  S.  C.    and  taxes.— a 
Modern  acts  usually  subject  the  laad- 
616 


AND   DOMESTICS.  494 

person  exposed  to  insults.  Thus,  all  the  reasons  which  es-  BOOK  IT. 
tablish  his  independence  and  inviolability,  concur  likewise  in  CHAP-  "• . 
securing  the  freedom  of  his  house.  In  all  civilized  nations, 
this  right  is  acknowledged  as  annexed  to  the  ambassadorial 
character ;  and  an  ambassador's  house,  at  least  in  all  the 
ordinary  affairs  of  life,  is,  equally  with  his  person,  considered 
as  being  out  of  the  country.  Of  this,  a  remarkable  instance 
occurred,  not  many  years  ago,  at  Petersburgh.  On  the  3d 
of  April,  1752,  thirty  soldiers,  with  an  officer  at  their  head, 
entered  the  house  of  baron  Greiffenheim,  the  Swedish  minis-  [  495  ] 
ter,  and  carried  off  two  of  his  domestics,  whom  they  con- 
ducted to  prison,  under  a  pretence  that  those  two  men  had 
clandestinely  sold  liquors,  which  the  imperial  farm  alone  has 
the  privilege  of  selling.  The  court,  incensed  at  such  a  pro- 
ceeding, caused  the  authors  of  this  act  of  violence  to  be  im- 
mediately taken  into  custody,  and  the  empress  ordered  satis- 
faction to  be  made  to  the  offended  minister;  she  likewise 
sent  to  him  and  to  all  the  other  foreign  ministers,  a  declara- 
tion, in  which  she  expressed  her  concern  and  resentment  at 
what  had  happened,  and  communicated  the  orders  which  she 
had  given  to  the  senate  to  institute  a  prosecution  against 
the  commissioner  of  the  office  established  for  the  prevention 
of  the  clandestine  sale  of  liquors,  he  being  the  chief  delin- 
quent. 

The  house  of  an  ambassador  ought  to  be  safe  from  all  out- 
rage, being  under  the  particular  protection  of  the  law  of 
nations,  and  that  of  the  country ;  to  insult  it,  is  a  crime  both 
against  the  state  and  against  all  other  nations. 

But  the  immunity  and  freedom  of  the  ambassador's  house  §  us.  Right 
is  established  only  in  favour  of  the  minister  and  his  house- of  asylum, 
hold ;  as  is  evident  from  the  very  reasons  upon  which  it  is 
grounded.  Can  he  take  advantage  of  the  privilege,  in  order 
to  convert  his  house  into  an  asylum,  to  afford  shelter  and 
protection  to  the  enemies  of  the  prince,  and  to  malefactors 
of  every  kind,  and  thus  screen  them  from  the  punishments 
which  they  have  deserved  ?  Such  proceedings  would  be  con- 
trary to  all  the  duties  of  an  ambassador,  to  the  spirit  by 
which  he  ought  to  be  animated,  and  to  the  lawful  purposes 
for  which  he  has  been  admitted  into  the  country.  This  is 
what  nobody  will  presume  to  deny.  But  I  proceed  further, 
and  lay  it  down  as  a  certain  truth,  that  a  sovereign  is  not 
obliged  to  tolerate  an  abuse  so  pernicious  to  his  state,  and  so 
detrimental  to  society.  I  grant,  indeed,  that  when  there  is 
question  only  of  certain  ordinary  transgressions,  and  these 
committed  by  persons  who  often  prove  to  be  rather  unfortu- 
nate than  criminal,  or  whose  punishment  is  of  no  great  im- 
portance to  the  peace  of  society,  the  house  of  an  ambassador 
may  well  serve  as  an  asylum  for  such  offenders ;  and  it  is 
better  that  the  sovereign  should  suffer  them  to  escape,  than 
expose  the  ambassador  to  frequent  molestation  under  pre- 

?S  3  B  2  617 


495  OF  THE  AMBASSADORS'  HOUSE. 

BOOK  iv.  tence  of  a  search  after  them,  and  thus  involve  the  state  in 
CHAP,  ix.  anv  difficulty  which  might  arise  from  such  proceedings. 
And  as  the  house  of  an  ambassador  is  independent  of  the 
ordinary  jurisdiction,  no  magistrate,  justice  of  the  peace,  or 
other  subordinate  officer,  is  in  any  case  entitled  to  enter  it 
by  his  own  authority,  or  to  send  any  of  his  people  to  enter 
it,  unless  on  occasions  of  urgent  necessity,  when  the  public 
welfare  is  threatened  with  imminent  danger  which  admits  of 
no  delay.  Whatever  concerns  a  point  of  such  weight  and 
delicacy, — whatever  affects  the  rights  and  the  dignity  of  a 
foreign  power, — whatever  may  embroil  the  state  with  that 
power, — is  to  be  laid  immediately  before  the  sovereign,  and 
to  be  determined  either  by  himself  in  person,  or,  under  his 
f  496]  direction,  by  the  privy  council.  Thus,  it  belongs  to  the  sove- 
reign to  decide,  on  occasion,  how  far  the  right  of  asylum, 
which  an  ambassador  claims  as  belonging  to  his  house,  is  to 
be  respected :  and  if  the  question  relates  to  an  offender  whose 
arrest  or  punishment  is  of  great  importance  to  the  state,  the 
prince  is  not  to  be  withheld  by  the  consideration  of  a  privi- 
lege which  was  never  granted  for  the  detriment  and  ruin  of 
states.  In  the  year  1726,  the  famous  duke  de  Ripperda 
having  sheltered  himself  in  the  house  of  lord  Harrington,  am- 
bassador from  England,  the  council  of  Castile  decided  "that 
he  might  be  taken  out  of  it,  even  by  force ;  since,  otherwise, 
those  regulations  which  had  been  made  for  the  purpose  of 
maintaining  a  more  regular  and  intimate  correspondence  be- 
tween sovereigns  would,  on  the  contrary,  operate  to  the  sub- 
version and  utter  ruin  of  their  authority ; — and  that,  if  per- 
sons who  had  been  intrusted  with  the  finances,  the  power, 
and  the  secrets  of  the  state,  were,  when  guilty  of  violating 
the  duties  of  their  office,  allowed  to  take  shelter  under  a  pri- 
vilege which  had  been  granted  to  the  houses  of  ambassadors 
in  favour  only  of  ordinary  offenders, — such  an  extension  of 
the  right  of  asylum  would  be  productive  of  consequences  the 
most  pernicious  and  detrimental  to  all  the  powers  on  earth, 
who,  if  the  practice  once  became  established,  would  be  re- 
duced to  the  necessity,  not  only  of  enduring  the  presence  of 
every  man  who  was  plotting  their  destruction,  but  even  of 
seeing  him  supported  in  their  own  court."* — Nothing  could 
be  said  on  this  head  with  greater  truth  and  judgment. 

The  abuse  of  the  privilege  has  nowhere  been  carried  to 
a  greater  extent  than  at  Rome,  where  the  ambassadors  of 
crowned  heads  claim  it  for  the  whole  ward  in  which  their 
house  is  situated.  The  popes,  once  so  formidable  to  sove- 
reigns, have  for  above  two  centuries  been  in  their  turn  under 
a  necessity  of  observing  the  most  delicate  and  cautious  cir- 
cumspection in  their  conduct  towards  them.  It  is  in  vain 
that  they  have  endeavoured  to  suppress,  or  at  least  to  reduce 

*  Memoirs  of  the  Abb6  De  Montgon,  vol.  1. 
618 


AND   DOMESTICS.  496 

within  proper  bounds,  an  abusive  privilege,  for  which,  pre-    BOOK  rv. 
scription,    however    great   its    antiquity,    ought   not   to   be   CHAP'  IX< 
allowed   as  a  sufficient   plea   in   opposition   to  justice   and 
reason. 

An  ambassador's  carriages  and  equipages  are  equally  pri-  g  119.  Ex- 
vileged  with  his  house,  and  for  the  same  reasons :  to  insult  emption  of 
them  is  an  attack  on  the  ambassador  himself,  and  on  the  *" ambassa- 
sovereign  whom  he  represents.  They  are  independent  of  all  &&£* 
subordinate  authority — of  guards,  custom-house  officers,  ma- 
gistrates and  their  agents, — and  must  not  be  stopped  or 
searched  without  a  superior  order.  But  in  this  instance,  as 
in  that  of  the  ambassador's  house,  the  abuse  is  not  to  be  con- 
founded with  the  right.  It  would  be  absurd  that  a  foreign 
minister  should  have  the  power  of  conveying  off  in  his  coach 
a  criminal  of  consequence, — a  man,  in  the  seizure  of  whose 
person  the  state  were  highly  interested ;  and  that  he  should 
do  this  under  the  very  eyes  of  the  sovereign,  who  thus  would 
see  himself  defied  in  his  own  kingdom  and  court.  Where  is 
the  sovereign  who  would  suffer  this  ?  The  marquis  de  Fon- 
tenay,  the  French  ambassador  at  Rome,  sheltered  the  Neapo- 
litan exiles  and  rebels,  and  at  last  undertook  to  convey  them 
out  of  Rome  in  his  own  carriages :  but  the  carriages  were 
stopped  at  the  city  gates  by  some  Corsicans  of  the  pope's  [  497  ] 
guard,  and  the  Neapolitans  committed  to  prison.  The  am- 
bassador warmly  complained  of  the  procedure :  but  the  pope 
answered  "  that  his  motive  had  only  been  that  of  arresting 
men  whom  the  ambassador  had  assisted  in  escaping  from  con- 
finement ;  and  that,  since  the  ambassador  took  the  liberty  of 
harbouring  villains,  and  affording  protection  to  every  criminal 
in  the  papal  territory, — at  least  he,  who  was  sovereign  of  the 
state,  ought  to  be  allowed  to  have  them  retaken  wherever 
they  could  be  found ;  as  the  rights  and  privileges  of  ambas- 
sadors were  not  to  be  carried  to  such  lengths."  The  ambas- 
sador replied,  "that  it  would  not  appear,  on  examination,  that 
he  had  granted  an  asylum  to  any  subjects  of  the  pope,  but 
solely  to  some  Neapolitans,  whom  he  might  very  lawfully 
shelter  from  the  persecutions  of  the  Spaniards."*  By  this 
answer,  the  minister  tacitly  conceded  that  he  would  not  have 
been  authorized  to  complain  of  the  stoppage  of  his  carriages, 
if  he  had  employed  them  for  the  purpose  of  favouring  the 
escape  of  any  of  the  pope's  subjects,  and  aiding  criminals  to 
elude  the  pursuit  of  justice. 

The  persons  in  an  ambassador's  retinue  partake  of  his  ?  120.  of 
inviolability ;  his  independency  extends  to  every  individual his  retinn« 
of  his  household:  so  intimate  a  connection  exists  between (203)' 
him  and  all  those  persons,  that  they  share  the  same  fate  with 

*  See  Wicquefort's  Ambassador,  book    Anne,  c.  12 ;  and  see  cases,  Chitty's  Col. 
i.  g  28,  towards  the  end.  Stat  13;  13  Price  Rep.  805.— C. 

(203)  Privileged  from  an    arrest,  7 

619 


497  OF  THE  AMBASSADOR'S  HOUSE 

BOOK  iv.  him ;  they  immediately  depend  on  him  alone,  and  are  exempt 
CHAP,  ix.  from  ^g  jurisdiction  of  the  country,  into  which  they  would 
not  have  come  without  such  reservation  in  their  favour.  The 
ambassador  is  bound  to  protect  them ;  and  no  insult  can  be 
offered  to  them,  which  is  not  at  the  same  time  an  insult  to 
himself.  If  the  domestics  and  household  of  a  foreign  minis- 
ter were  not  solely  dependent  "on  him,  it  is  evident  at  first 
sight,  how  easily  he  might  be  harassed,  molested,  and  dis- 
turbed in  the  exercise  of  his  functions.  These  maxims  are 
at  present  everywhere  adopted  and  confirmed  by  custom, 
g  121.  of  his  The  ambassador's  wife  is  intimately  united  with  him,  and 
wife  and  m0re  particularly  belongs  to  him  than  any  other  person  of 
his  household.  Accordingly,  she  participates  in  his  inde- 
pendence and  inviolability;  she  even  receives  distinguished 
honours,  which,  in  a  certain  degree,  cannot  be  refused  to  her 
without  affronting  the  ambassador;  and  for  which  there 
exists,  in  the  generality  of  courts,  an  established  ceremonial. 
The  respect  due  to  the  ambassador  extends  likewise  to  his 
children,  who  also  partake  of  his  immunities. 

$  122.  of  the      The  ambassador's  secretary  is  one  of  his  domestics :  but 
secretary  of  the  secretary  of  the  embassy  holds  his  commission  from  the 
bass*3™         sovereign  himself;  which  makes  him  a  kind  of  public  minis- 
ter, enjoying  in  his  own  right  the  protection  of  the  law  of 
[  498  ]  nations,  and  the  immunities  annexed  to  his  office,  independ- 
ently of  the  ambassador,  to  whose  orders  he  is  indeed  but 
imperfectly  subjected, — sometimes  not  at  all,  and  always  in 
such  degree  only  as  their  common  master  has  been  pleased 
to  ordain. 

§  123.  of  Couriers  sent  or  received  by  an  ambassador,  his  papers, 
the  ambas-  letters,  and  despatches,  all  essentially  belong  to  the  embassy, 
sador's  cou-  an(j  are  consequently  to  be  held  sacred ;  since,  if  they  were 
despatches  no*  resPected,  the  legitimate  objects  of  the  embassy  could 
not  be  attained,  nor  would  the  ambassador  be  able  to  dis- 
charge his  functions  with  the  necessary  degree  of  security. 
The  states-general  of  the  United  Provinces  decided,  while 
the  president  Jeannin  resided  with  them  as  ambassador  from 
France,  that,  to  open  the  letters  of  a  public  minister  is  a 
breach  of  the  law  of  nations.*  Other  instances  may  be  seen 
in  Wicquefort.  That  privilege,  however,  does  not — on  cer- 
tain momentous  occasions,  when  the  ambassador  himself  has 
violated  the  law  of  nations,  by  forming  or  countenancing  plots 
or  conspiracies  against  the  state — deprive  us  of  the  liberty 
to  seize  his  papers  for  the  purpose  of  discovering  the  whole 
secret,  and  detecting  his  accomplices ;  since,  in  such  an 
emergency,  the  ambassador  himself  may  lawfully  be  arrested 
and  interrogated  (§  99).  An  example  is  furnished  us  in  the 
conduct  of  the  Roman  government,  who  seized  the  letters 

*  Wicquefort,  book  L  \  27. 
620 


AND   DOMESTICS.  498 

which  a  treasonable  junto  had  committed  to  the  hands  of    BOOK  rv. 
Tarquin's  ambassadors  (§  £ 


The  persons  in  a  foreign  minister's  retinue,  being  inde-  \  124.  The 
pendent  of  the  jurisdiction  of  the  country,  cannot  be  taken  J^*8*1^ 
into  custody  or  punished  without  his  consent.  It  would,  ri°ysover  °" 
nevertheless,  be  highly  improper  that  they  should  enjoy  an  bis  retinue, 
absolute  independence,  and  be  at  liberty  to  indulge  in  every 
kind  of  licentious  disorder,  without  control  or  apprehension. 
The  ambassador  must  necessarily  be  supposed  to  possess 
whatever  degree  of  authority  is  requisite  for  keeping  them  in 
order  :*  and  some  writers  will  have  that  authority  to  include 
even  a  power  over  life  and  death.  When  the  marquis  de 
R6ny,  afterwards  duke  De  Sully,  was  in  England  as  ambas- 
sador extraordinary  from  France,  a  gentleman  of  his  retinue 
committed  a  murder,  which  caused  a  great  noise  among  the 
people  of  London.  The  ambassador  assembled  some  French 
noblemen  who  had  accompanied  him  on  his  mission,  tried  the 
murderer,  and  sentenced  him  to  lose  his  head.  He  then  ac- 
quainted the  lord  mayor  of  London  that  he  had  pronounced 
sentence  on  the  criminal,  desiring  that  magistrate  to  furnish 
him  with  an  executioner  and  proper  attendants  to  have  the 
punishment  inflicted.  But  he  afterwards  consented  to  de- 
liver up  the  criminal  to  the  English,  in  order  that  they  might  [  499  ] 
execute  justice  on  him  as  they  thought  proper :  and  Monsieur 
De  Beaumont,  the  French  ambassador  in  ordinary,  prevailed 
on  the  British  monarch  to  pardon  the  young  man,  who  was 
related  to  that  minister  by  the  ties  of  consanguinity,  f  It 
rests  entirely  at  the  option  of  the  sovereign  to  invest  his  am- 
bassador with  such  an  extensive  power  over  the  persons  of  his 
suite :  and  the  marquis  de  Kony  was  confidently  certain  of 
having  his  conduct  approved  by  his  master,  who  did,  in  fact, 
express  his  approbation  of  the  whole  transaction.  In  gene- 
ral, however,  it  is  to  be  presumed  that  the  ambassador  is 
possessed  only  of  a  coercive  power  sufficient  to  restrain  his 
dependants,  by  other  punishments  which  are  not  of  a  capital 
or  infamous  nature.  He  may  punish  the  faults  committed 
against  himself  and  against  his  master's  service,  or  send  the 
delinquents  to  their  sovereign,  in  order  to  their  being  pun- 
ished. But  should  any  of  his  people  commit  crimes  against 
society,  which  deserve  a  severe  punishment,  the  ambassador 

*  It  is  his  duty  to  watch  over  their  mediate  an  accommodation  between 
conduct,  and  to  exert  his  authority  in  Charles  I.  and  his  parliament,  several 
order  to  prevent  them  from  transgress-  gentlemen  of  that  minister's  suite  re- 
ing  the  bounds  of  their  station,  and  paired  to  the  royal  army,  and  fought 
committing  actions  which  may  give  against  the  parliamentarians ;  on  which 
just  offence  to  the  sovereign  at  whose  account  the  parliament  immediately 
court  he  resides, — an  event  which  may  declined  all  further  negotiation  with 
sometimes  be  productive  of  very  se-  the  count  De  Harcourt.  Duport's  Hist. 
rious  and  disagreeable  consequences,  of  Conspir.  vol.  iv.  p.  261.  Edit.  A.  D. 
The  French  court  having  sent  the  1729. 

count    De    Harcourt    to    England    to  •(•  Bully's  Memoirs,  vol.  vi.  chap.  i. 

621 


499  OF  THE  AMBASSADOR'S  HOUSE 

BOOK  iv.  ought  to  make  a  distinction  between  such  of  his  domestics  as 
CHAP>  IX>  belong  to  his  own  nation,  and  others  who  are  subjects  of  the 
country  where  he  resides.  The  shortest  and  most  natural 
way  with  the  latter,  is  to  dismiss  them  from  his  service,  and 
deliver  them  up  to  justice.  As  to  those  of  his  own  nation,  if 
they  have  offended  the  sovereign  of  the  country,  or  committed 
any  of  those  atrocious  crimes  in  whose  punishment  all  nations 
are  interested,  and  whose  perpetrators  are,  for  that  reason, 
usually  surrendered  by  one  state  when  demanded  by  an- 
other,— why  should  he  not  give  them  up  to  the  nation  which 
calls  for  their  punishment  ?  If  the  transgression  be  of  a  dif- 
ferent kind,  he  is  to  send  them  to  his  sovereign.  Finally,  if 
the  case  be  of  a  doubtful  nature,  it  is  the  ambassador's  duty 
to  keep  the  offender  in  irons  till  he  receives  orders  from  his 
court.  But  if  he  passes  a  capital  sentence  on  the  criminal,  I 
do  not  think  he  can  have  it  executed  in  his  own  house;  an 
execution  of  that  nature  being  an  act  of  territorial  superiority 
which  belongs  only  to  the  sovereign  of  the  country.  And 
although  the  ambassador,  together  with  his  house  and  house- 
hold, be  reputed  out  of  the  country,  that  is  nothing  more 
than  a  figurative  mode  of  speech  intended  to  express  his  in- 
dependency, and  all  the  rights  necessary  to  the  lawful  suc- 
cess of  the  embassy :  nor  can  that  fiction  involve  privileges 
which  are  reserved  to  the  sovereign  alone, — which  are  of  too 
delicate  and  important  a  nature  to  be  communicated  to  a  fo- 
reigner, and,  moreover,  not  necessary  to  the  ambassador  for 
the  due  discharge  of  his  functions.  If  the  offence  has  been 
committed  against  the  ambassador  or  against  the  service  of 
his  master,  the  ambassador  may  send  the  delinquent  to  his 
sovereign.  If  the  crime  concerns  the  state  where  the  minis- 
ter resides,  he  may  try  the  criminal,  and,  if  he  finds  him 
[  500  ]  worthy  of  death,  deliver  him  up  to  the  justice  of  the  country, 

as  did  the  marquis  de  R6ny. 

1 125.  When     When  the  commission  of  an  ambassador  is  at  an  end, — 
the  rights     wnen  ne  has  concluded  the  business  for  which  he  came  into 
bLsadoi-1'    ^6  country  > — when  he  is  recalled  or  dismissed, — in  a  word, 
expire.        when  he  is  obliged  to  depart  on  any  account  whatever,  his 
functions  cease :  but  his  privileges  and  rights  do  not  imme- 
diately expire :  he  retains  them  till  his  return  to  his  sove- 
reign, to  whom  he  is  to  make  a  report  of  his  embassy.*     His 
safety,  his  independence,  and  his  inviolability  are  not  less 
necessary  to  the  success  of  the  embassy  in  his  return,  than 
at  his  coming.     Accordingly,  when  an  ambassador  departs 
on  account  of  a  war  arising  between  his  master  and  the  sove- 
reign at  whose  court  he  was  employed,  he  is  allowed  a  suffi- 

*  "  It  was  at  that  time,"  says  Join-  them  happened  to  die,  the  ambassadors 

Tille,  "an  established  custom,  as  well  in  whom  they  had  mutually  sent  to  each 

pagan  as  in   Christian  countries,  that,  other  remained  prisoners  and  slaves."— 

when  two  princes  were  at  war,  if  one  of  p.  72,  edit.  A.  D.  1797. 
622 


AND   DOMESTICS.  500 

cient  time   to  quit  the   country  in  perfect  security :    and,    BOOK  iv. 
moreover,  if  he  was  returning  home  by  sea,  and  happened  to  CHAP-  "•_ 
be  taken  on  his  passage,  he  would  be  released  without  a  mo- 
ment's hesitation,  as  not  being  subject  to  lawful  capture. 

For   the   same  reasons,  the  ambassador's   privileges  still  §  126.  Cases 
exist  at  those  times  when  the  activity  of  his  ministry  happens  when  nfw 
to  be  suspended,  and  he  stands  in  need  of  fresh  powers. credentials 
Such  a  case  occurs  in  consequence  of  the  death  of  the  prince  l™^™ 
whom  the  minister  represents,  or  of  the  sovereign  at  whose 
court  he  resides.     On  either  occasion  it  becomes  necessary 
that  the  minister  should  be  furnished  with  new  credentials. 
The  necessity,  however,  is  less  cogent  in  the  latter  than  in 
the  former  case,  especially  if  the  successor  of  the  deceased 
prince   be   the   natural   and   necessary  successor;    because, 
while  the  authority  whence  the  minister's  power  emanated 
still  subsists,  it  is  fairly  presumable  that  he  retains  his  for- 
mer character  at  the  court  of  the  new  sovereign.     But  if  his 
own  master  is  no  more,  the  minister's  powers  are  at  an  end ; 
and  he  must  necessarily  receive  fresh  credentials  from  the 
new  prince,  before  he  can  be  authorized  to  speak  and  act  in 
his  name.     In  the  interim,  however,  he  still  continues  to  be 
the  minister  of  his  nation,  and,  as  such,  is  entitled  to  enjoy 
all  the  rights  and  honours  annexed  to  that  character. 

At  length,  I  have  reached  the  end  of  my  proposed  career,  g  127.  Con- 
I  do  not  flatter  myself  with  the  idea  of  having  given  a  per-  elusion, 
feet,  full,  and  complete  treatise  of  the  law  of  nations ;  nor 
was  that,  indeed,  my  design ;  for  it  would  have  been  too 
great  a  degree  of  confidence  in  my  own  abilities  to  have 
made  such  an  attempt  on  a  subject  so  extensive  and  so  co- 
pious. I  shall  think  I  have  done  a  great  deal,  if  my  princi- 
ples are  approved  as  solid,  luminous,  and  sufficient  to  enable 
intelligent  persons  to  give  a  proper  solution  on  any  minute 
questions  that  may  arise  in  particular  cases ;  and  shall  be 
happy  if  the  result  of  my  labours  proves  in  anywise  service- 
able to  those  men  in  power  who  love  mankind  and  respect 
justice, — and  furnishes  them  with  weapons  for  the  purpose 
of  defending  the  cause  of  right,  and  compelling  the  unjust 
to  observe  at  least  some  measures,  and  to  keep  within  the 
bounds  of  decency. 

623 


INDEX. 


ABSENCE.    See  COUNTRY. 

of  the  right  of  individuals  to  quit  their 
country,  103,  <fcc. 

AGREEMENT.        See     TREATY,      CONVEN- 
TIONS. 

ALIEN  ENEMY,  323.    See  ENEMY. 

ALIENAGE,  176.    See  FOREIGNER. 

ALIENATION, 

of    public    property,    116.      See    PRO- 
PERTY. 
ALLEGIANCE, 

obligations  of,  6,  in  note. 

of  subject  to  a  sovereign,  21. 

ALLIANCE.  See  TREATY. 
treaty  of,  192,  323,  324. 
subject  of,  considered,  ib. 

ALLUVION.    See  RIVERS. 
of  the  right  to,  121. 
distinction  between,  and  avulsion,  ib. 

ALLY.    See  ENEMY,  WAR. 

AMBASSADOR, 

•who,  459. 

are  ordinary  or  extraordinary,  ib. 

representative  character  of,  ib. 

rights,  privileges,  and  immunities  of,  464. 
See  MINISTER. 

may  annul  a  treaty,  459,  n.  (192). 

duty  of,  when  consul  of  friendly  state  re- 
jected, ib. 

children  of  and  attendants,  though  born 
in  foreign  state,  considered  as  natu- 
ral-born subjects,  ib. 

right  of,  to  grant  passports,  ib. 

right  of,  to  restoration  of  despatches  when 
captured  by  an  enemy,  ib. 

protected  and  favoured  by  the  law  of 
nations,  ib. 

79 


AMBASSADOR  (continued). 

privileges  of,  and  servants  from  arrest, 

459,  n.  (192). 
when  compelled  to  give  security  for  costs, 

ib. 

right  of,  in  civil  cases,  488. 
is  exempt  from  civil  jurisdiction  where 

resident,  488,  489. 
cause  of  this  exemption,  ib. 
may  voluntarily  subject  himself  to  it,  489, 

490. 

may  commence  a  civil  suit,  490. 
but  should  not  institute  a  criminal  one,  ib. 
when  a  subject  of  state  where  employed, 

ib. 
when  or  not  subject  to  its  jurisdiction, 

490,  491. 

property  of,  also  exempt,  491,  492. 
when  otherwise,  492. 
not  liable  to  claims  arising  from  duties 

of  office,  ib. 
immovable  property  of,  not  exempt,  493, 

and  n.  (201). 
when  exempt  from  distress,  493,  and  n. 

(201),  495,  and  n.  (202). 
proceedings  against  property  not  exempt, 

493,  494. 

house  and  domestics  of,  494. 
to  enjoy  a  perfect  immunity,  494,  495. 
how  far   exempt  from   distress,  495,  n. 

(202),  493,  n.  (201). 
how  far  subject  to  poor-rates  and  taxes, 

495,  n.  (202). 

his  right  of  asylum,  495,  496. 
limitation  thereof,  ib. 
exemption    of    ambassadors'    carriages, 
496. 

of  their  retinue,  497,  n.  (203). 
of  wife  and  family  of,  497. 
of  secretary  of  ambassador,  ib. 
of  their    couriers    and    despatches, 

498. 
3C  625 


626 


INDEX. 


AMBASSADOR  (continued). 

authority  of,  over  retinue,  498,  and  n.  j- 

499. 

duty  of,  with  respect  to,  498,  499. 
when  rights  of,  expire,  500. 
new  credentials,  when  necessary,   ib. 

AMNESTY.    See  PEACE. 

what,  439. 

an  oblivion  of  the  past,  ib. 

implied  in  every  treaty  of  peace,  ib. 

to  rebels,  423,  426. 
ANTICIPATION, 

what,  114. 

right  of,  in  the  use  of  common  property, 

ib.    See  PROPERTY. 
ARBITRATION, 

what,  20,  277. 

between  sovereign  and  subjects,  20. 

between  nations,  277. 

general  obligations  of  arbitrators'  deci- 
sion, ib. 

when  not  binding,  277,  278. 

conferences  and  congresses,  278. 

congress,  what,  ib. 

ARISTOCRATIC    REPUBLIC.       See     Go- 

YERNMENT. 

what,  2. 

empire  intrusted  by  nation  to  a  certain 
number  of  citizens,  ib. 

ARMY.    See  WAR. 

right  of  levying  troops,  294. 

enlistment  of  troops,  294,  298. 

soldiers'  pay  and  quarters,  296. 

standing  armies,  296,  314. 

mercenary  soldiers,  297. 

obligation  of  soldiers,  299. 

punishment  of  deserters,  t'6. 

military  laws,  t'6. 

military  discipline,  t'6. 

officers  of,  299,  300,  301. 
ARREST, 

ambassador  privileged  from,  459,  and  n. 
See  AMBASSADOR. 

consul  not  exempt  from,  147,  and  n.  (101), 
459,  and  n.  (192). 

on  foreign    contract   here,  though  arrest 
not  permitted  where  contract  made, 
173,  and  n.  (111). 
ASSASSINATION, 

what,  359. 

of  prisoners,   358,  360,  361.     See   PRI- 
SONERS. 
ASSEVERATION, 

use  of,  in  treaties,  233.    See  TREATY. 
ASSOCIATE, 

of  the  enemy,  328.    See  ENEJCT. 
AUXILIARIES, 

what,  324.    See  Eramr. 


AVULSION, 

what,  121.    See  RIVERS,  STREAMS,  and 

LAKES. 
distinction  between,  and  alluvion,  121. 

BANISHMENT.    See  EXILE. 

distinction  between,  and  exile,  107. 

banishment,  what,  ib. 

for  .what  time,  ib. 

when  party  said  to  be  banished,  t'6. 

inflicted  as  a  punishment,  t'6. 

is  a  mark  of  infamy,  t'6. 

how  far  right  of,  extends,  t'6. 

right  of  banished  party  to  live  somewhere, 

108. 

though  right  only  an  imperfect  one,  t'6. 
nations  may  refuse  him  admittance,  t'6. 
but  not  without  good  reasons,  t'6. 
duty  of  nations  towards  him,  t'6. 
cannot  punish  him  for  offences  committed 

out  of  their  territories,  109. 
except  for  safety  of  mankind,  t'6. 

BAY,  129,  130.     See  SEA. 

BILL  OF  EXCHANGE. 

construction  of,  in  this  country,  173,  n. 

(111), 
effect  of  English  Statute  of  Limitations,  ib. 

BLOCKADE, 

what,  339,  and  n.  (159). 

of  the  violation  of,  i'6. 

distinction  between  military  and  commer- 
cial blockade,  t'6. 

three  things  necessary  to  constitute  a 
violation  of,  t'6. 

1.  The  existence  of  an  actual   block- 

ade, t'6. 

2.  The   knowledge   of  the   party  sup- 

posed to  have  violated  it,  t'6. 

3.  Some  act  of  violation,  t'6. 

BOOTY, 

what,  365. 

distinction  between,  and  conquest,  t'6. 
See  ENEMY. 

CAPITULATION.    See  WAR. 
what,  412,  413. 
how  concluded,  t'6. 

necessity  for  observing  terms  of,  414. 
instances,  415. 

duty  of  sovereigns  to  see  them  fulfilled, 
414. 

CAPTURE.    See  WAR. 

CASUS  FCEDERIS, 
what,  326. 
only  takes  place  where  war  unjust,  326, 

330. 

how  it  exists  in  a  defensive  war,  326. 
in  a  treaty  of  guaranty,  t'6. 


INDEX. 


62T 


CELIBACY.    See  POPERY. 

of  priests  considered,  69,  70. 

its  effects,  ib. 
CHILDREN, 

of  citizens  born  in  a  foreign  country,  102, 
n.  (59).  See  CITIZEN. 

born  at  sea,  102.     See  SEA. 

born  in  armies  of  state,  103. 

in  the  house  of  minister  at  foreign  court, 
459,  and  n.  (192).  See  COUNTRY. 

of  vagrants,  103.    See  VAGRANT. 

CHRISTIANITY.    See  RELIGION. 

law  of  nations  construed  by,  n.  (1). 

CHURCH.  See  ECCLESIASTICS,  RELI- 
GION. 

the  sovereign's  authority  over,  62. 

necessity  of  acknowledging  him  to  be 
head  of,  66. 

of  taxing  church  possessions,  72,  73. 

should  be  the  first  appropriated  to  the 
use  of  the  state,  73. 

why  should  bo  so,  ib. 

misappropriation  of  revenues  of,  ib, 

CITIZEN.    See  COUNTRY,  NATION. 
who  are  citizens,  101. 
are  members  of  the  civil  society,  ib. 
children  of,  born  abroad,  are  citizens,  102, 

and  n.  (59). 

right  of,  to  quit  their  country,  103-105. 
duty  of,  in  advancing  glory  of  their  coun- 
try, 92. 
right  of,  to  protection,  5,  6,  n.  (15).  95. 

See  NATION. 
right  of,  when  the  nation  submits  to  a 

foreign  power,  94. 
interest  of  a  nation  in  the  conduct  of  her 

citizens,  161. 
duty  of  sovereign  to  revenge  injuries  of, 

161,  162. 

his  duty  to  protect,  162. 
to   prevent   them    offending  citizens    of 

other  nations,  ib. 
acts  of  individuals  not  to  be  imputed  to 

the  nation,  ib. 
otherwise,  if  ratified,  ib. 
conduct  of  injured  party,  ib. 
may  punish  aggressor,  ib. 
duty    of   aggressor's    sovereign    herein, 

163. 

should  enforce  reparation,  ib. 
when  should  deliver  up  offender,  ib. 
sovereign  refusing  justice  becomes  a  party 

to  the  wrong,  ib. 
nation    may  be    guilty    of  her   citizens' 

crimes,  when,  164,  and  n.  (106). 
duty  of  citizens  in  supporting  glory  of 

their  nation,  91. 

CIVIL  WAR. 

what,  422,  424. 

distinction  between,  and  rebellion,  424. 


CIVIL  WAR  (continued). 

sovereign's  right  against  rebels,  422. 
public  commotion,  insurrection,  and  sedi- 
tion, ib. 

meaning  thereof,  ib. 
sovereign,  how  to  suppress  them,  ib. 
of  amnesty  to  offenders,  423,  426. 
sovereign's  obligation  to  perform  his  pro- 
mises to  rebels,  423. 
effects  of  civil  war,  425,  426. 
produces  two  independent  parties,  425. 
each  bound  to  observe  the  laws  of  war,  ib. 
consequences  of  not  observing  them,  425 

to  427. 

exception  from  amnesty  in  case  of  sub- 
jection, 426. 

interference  of  foreign  nations,  427. 
may  interfere  to  restore  peace,  ib. 
when  may  assist  either  party,  ib. 
CLERGY.    See  ECCLESIASTICS,  RELIGION. 
CODE. 

no  general  international  code,  Iv.  in  note. 
ancient  codes  on  parts  of  the  law  of  na- 
tions, ib. 

as  to  the  maritime  law,  ib. 
but  these  imperfect,  ib. 
COLONIES.    See  COUNTRY. 
establishment  of,  101. 
relation  of,  to  mother  country,  ib. 
commerce  with,  42,  and  note. 
COMMERCE, 
what,  37,  43. 

home  and  foreign  trade,  37. 
utility  of  the  home  trade,  ib. 

of  the  foreign  trade,  ib. 
obligation  to  cultivate,  37,  143,  144. 
foundation  of  the  laws  of,  37,  143. 
right  of  buying  and  selling,  38,  144. 
distinction  between  these  rights,  38. 
right  of  buying  imperfect,  39,  145. 
moral  obligation  herein,  38,  and  n.  36. 
prohibition  of  foreign  merchandise,  39. 
each  state  may  prohibit  entrance  of,  39, 

and  n.  (37),  144. 

or  choose  how  far  it  will  engage  in  com- 
merce, 39,  144. 

Of  freedom  of  trade,  144,  and  n.  (97). 
commerce  with  colonies  of  parent  state, 

40. 
right  to  foreign  trade,  how  acquired,  41, 

145. 
necessity  of  commercial  treaties,  40,  145. 

See  COMMERCIAL  TREATIES. 
laws  relating  to  commerce  not  subject  to 

prescription,  40. 

so  of  rights  founded  on  treaty,  41. 
exceptions  thereto,  42. 
Of  monopoliet,  ib. 
generally  unlawful,  ib. 
right  of  sovereign  to  grant,  when,  ib. 
suppression  of,  when,  116. 


628 


INDEX. 


COMMERCE  (monopolies  continued). 

of  commercial  companies  how  far  bene- 
ficial, 142. 

of  foreign  monopolies,  42,  and  note. 
Of  the  balance  of  trade,  43. 
government     should    encourage     advan- 
tageous trade,  ib. 

should  lay    restraints    where    disadvan- 
tageous, 43,  and  n.  (42). 
what  an  advantageous  trade,  43. 
what  a  ruinous  trade,  ib. 
of  import  duties,  ib. 
COMMERCIAL     TREATIES.       See     COM- 

MERCE. 

necessity  of,  40. 

rule  respecting  commercial  treaties,  145. 

duty  of  nations  in  making  them,  147. 

duration  of,  145. 

revocation  of,  146. 

distinctions  as  to,  ib. 

of  granting  right  to  third  party  contrary 
to  treaty,  146. 

of  abridging  commerce  in  favour  of  an- 
other nation,  ib. 

or  of  appropriating  a  particular  branch 

of  trade,  147. 
COMPROMISE.    See  NATION. 

what,  276. 
CONDEMNATION.    See  PRIZE  COURT. 

sentence  of,  166. 

requisites  of,  ib. 

necessity  of,  to  complete  title  to  capture, 
166,  385,  and  notes. 

CONGRESS, 
what,  278. 

CONQUEST, 
what,  365. 
distinction  between,  and  booty,  ib. 

CONSCIENCE. 

law  of,  the  law  of  nations,  Iviii.  to  be. 

See  LAW  OP  NATIONS. 
liberty  of,  in  religion,  56,  61.    See  RE- 
LIGION. 

CONSTITUTION.    See  STATE. 
what,  8. 

right  of  nation  to  change,  10. 
legislature  cannot,  ib. 

CONSULS, 
who,  147. 
appointment  of,  ib. 
right  to  appoint  should  be  stipulated  for, 

ib. 
must  not  be  subjects  of  state  where  they 

reside,  148. 

are  accountable  to  their  sovereign,  ib. 
when  entitled  to  the  protection  of  the  law 

of  nations,  ib. 
exemption  from  criminal  justice  when, 

ib. 


CONTRABAND  GOODS, 
what,  337. 
seizure  and  confiscation  of,  337,  338. 

CONTRACT, 

construction  of  foreign  contracts,  173,  n. 

enforcement  of,  ib. 

arrest  here  on  contract,  though  not  per- 

•mitted  in  country  where  made,  ib. 
invalidity   of,  when  in  favour  of  alien 
enemy,  414. 

CONTRIBUTIONS.    See  ENEMY. 
what,  366. 
of  the  right  to  levy,  ib. 

CONVENTION.    See  TREATY. 
what,  218. 

of  those  made  by  sovereigns,  ib. 
by  subordinate  powers,  ib. 
who  are  subordinate  powers,  ib. 
when  made  in  the  name  of  the  sovereign, 

ib. 

or  by  virtue  of  their  office,  ib. 
power  to  make,  how  acquired,  ib. 
by    public     persons     without     sufficient 

powers,  219. 
when  or  not  valid,  ib. 
of  tacit  or  express  ratification  thereof,  ib, 
of  an  agreement  called  sponsio,  ib. 
foundation  of,  219,  220. 
state  not  bound  by,  220. 
to  what  promisor  is  bound,  when  it   is 

disavowed,  220  to  223. 
to  what  the  sovereign  is  bound,  223  to 

226. 

private  contracts  of  sovereign,  226. 
subject  to  same  rules  as  those  of  private 

persons,  ib. 
contracts  made  by  sovereign  with  private 

persons  in  name  of  state,  ib. 
are  binding  on  a  nation  and  his  succes- 
sors, 227. 

debts  of  the  sovereign  and  state,  ib. 
donations  of  the  sovereign,  228. 
restriction  and  revocation  of,  t'6. 
of   conventions    during   war,    404.     See 

WAR. 
of    conventions    relating    to    ransom   of 

prisoners,  419.    See  RANSOM. 

CONVENTIONAL  LAW.    See  TREATY. 
what,  Lsiv. 

binds  only  the  contracting  parties,  Ixv. 
and  n. 

CONVENTS.    See  POPERY. 

CORPORATION, 
property  of,  113. 

See  PROPERTY. 

right  of,  to  alienate  same,  113,  114. 
sovereign's  power  over,  113. 
members  of,  114. 
right  of,  to  make  regulations,  ib. 


INDEX. 


629 


CORPORATION  (continued). 

obligation  of,  to  preserve  corporate  pro- 
perty, 115. 

expenses  of,  and  how  borne,  t'6. 
COUNTRY, 

what,  53,  101,  103. 

how  understood  in  the  law  of  nations,  54. 
love  of  country,  52,  103. 
in  individuals,  53. 
in  the  nation  and  sovereign,  ib. 
injury  to,  54. 

possession  of  by  a  nation,  98. 
exclusive  right  thereto,  ib. 
comprehends  two  things,  ib. 
right  of  domain  and  empire,  98,  99. 
acquisition  of  sovereignty  in  a  vacant 

country,  99. 
empire  over,  acquired  with  domain,  ib. 

another  mode  of  acquiring  it,  ib. 
how  a  nation  may  appropriate  to  itself 

a  desert  country,  ib. 
must  be  by  possession,  ib. 
of  possession  where  occupied  by  a  few 

wandering  tribes,  99,  100,  101. 
of  colonies,  101. 
become  a  part  of  the  mother  country, 

ib. 

Of  the  several  things  relating  to  country,  ib. 
citizens,  who  are,  ib. 
natives,  who  are,  ib. 
children  born  of  citizens,  their  rights, 

ib. 

of  foreigners,  ib. 
inhabitants,  who  are,  102. 
distinguished  from  citizens,  ib. 
of  foreigners  permitted  to  settle  there, 

ib. 

their  duty  to  defend  the  state,  ib. 
enjoy  only  the  advantages    given  by 

the  law,  Ac.,  ib. 
perpetual  inhabitants,  who,  ib. 
their  rights,  ib. 

rights  of,  pass  to  their  posterity,  ib. 
Naturalization,  what,  102,  and  n.  58. 
by  whom  granted,  102. 
jf  imperfect  naturalization,  ib. 
of  naturalization  by  birth,  ib. 
in  England  and  Poland,  ib. 
Children  of  citizens  born  in  a  foreign  country, 

ib. 
Children  born  at  sea,  ib. 

when  in  parts  belonging  to  the  nation, 

ib. 

on  the  open  sea,  16. 
vessels  of  a  nation  a  part  of  its  territory, 

ib. 
children  born  therein,  born  within  its 

territory,  ib. 
otherwise,    if  born   in   foreign  vessel, 

Ac.,  ib. 

unless  in  a  port  belonging  to  their  own 
nation,  ib. 


COUNTRY  (children  continued). 

Children  born  in  the  armies  of  the  state,  103. 

are  born  in  the  country,  ib. 

so  if  born  in  the  house  of  its  minister 

at  a  foreign  court,  103. 
Settlement,  ib. 

what,  ib. 

is  a  fixed  residence  in  any  place,  with 
intent  of  always  staying  there,  ib. 

how  established,  ib. 

may  transfer  his  settlement,  ib. 

how  distinguished  from  habitation,  ib. 

of  natural  or  original  settlement,  ib. 

of  acquired  settlement,  t'6. 
Vagrants,  ib. 

who  are,  t'6. 

are  people  who  have  no  settlement,  t'6. 

children  of,  have  no  country,  t'6. 

when  country  of,  that  of  parent,  t'6. 
When  a  party  may  quit  his  country,  103, 
104. 

in  general  has  a  right  to  do  so,  104. 

as  on  arriving  at  years  of  discretion,  ib. 

must  not  endanger  its  welfare,  t'6. 

distinction  between  internal  and  ex- 
ternal obligation,  t'6. 

should  not  quit,  except  from  necessity, 
t'6. 

of  abandoning  country  at  a  time  of 
danger,  t'6. 

right  of  country  to  punish,  t'6.  and  n. 
Of  temporary  absence  from,  105. 

right  thereto  in  time  of  peace,  t'6. 

return  when  public  interest  requires  it, 
t'6. 

variation  in  political  laws  herein,  t'6. 

these  laws  must  be  observed,  t'6. 

when  passports  requisite,  t'6. 
Cases  where  a  citizen  has  a  right  to  quit  his 
country,  ib. 

when  he  cannot  procure  subsistence 
there,  ib. 

where  body  of  society  fail  to  dis- 
charge their  obligations  towards 
him,  t'6. 

or  attempt  to  enact  laws  he  is  not 
bound  to  submit  to,  106. 

instances  herein,  t'6. 

where  only  one  religion  allowed,  106, 
57. 

where  popular  state  wish  to  have  a 
sovereign,  106,  11. 

or  to  submit  to  a  foreign  power,  106, 

94. 
Emigrants,  106. 

who  are,  t'6. 

sources  of  right  to  emigrate,  t'6. 

is  a  natural  right,  t'6. 

or  arising  from  a  fundamental  law  of 
the  state,  t'6. 

or  from  a  voluntary  grant  to  the  sove- 
reign, t'6. 

3c2 


INDEX. 


COUNTRY  (emigrants  continued). 

by  treaty  from  foreign  power,  106. 

on  account  of  religion,  ib. 

or  where  one  state  refuses  to  receive 
those  of  another,  106,  107. 

right  to  emigrate,  how  infringed,  107. 
Supplicants,  ib. 

who  are,  ib. 
Exile  and  Banishment  from,  ib. 

who  an  exile,  ib. 

one  driven  from  place  of  settlement, 
but  without  a  mark  of  infamy,  ib. 

banishment  what,  ib. 

p,  like  expulsion  with  mark  of  infamy, 
107,  and  note. 

time  of,  107. 

distinction  between  exile  and  banish- 
ment, ib. 

exile  sometimes  a  punishment,  ib. 

banishment  always  one,  ib. 

exile  is  either  voluntary  or  involuntary, 
107,  108. 

voluntary  when  to  escape  punishment, 
107. 

involuntary  when  the  effect  of  a  supe- 
rior order,  108. 

limit  of,  as  to  place,  ib. 

exiled  and  banished  man  has  a  right  to 
live  somewhere,  ib. 

nature  of  this  right,  ib. 
is  of  an  imperfect  kind,  ib. 

right  of  nations  to  refuse  him  admit- 
tance, ib. 

duty  of  nations  towards  him,  t'6. 

cannot  deprive  him  of  necessaries,  ib. 

or  punish  for  faults  committed  out  of 
their  territories,  109. 

unless  they  affect  the  safety  of  man- 
kind, ib. 

of  the  delivery  up  of  offenders,  109,  and 

note. 
COURT  OF  HONOUR, 

establishment  of,  proposed,  85,  86. 

COURTS  OF  JUSTICE.    See  JUSTICE. 

establishment  of,  78,  79. 
CREDENTIALS.     See  MINISTER. 

what,  461. 

when  new  credentials  necessary,  500. 
CULTIVATION, 

utility  of  tillage,  34. 

advantages  of,  as  a  source  of  wealth,  ib. 

regulations  necessary  in  respect  of,  ib. 

distribution  of  land,  ib. 

protection  of  husbandmen,  35. 

should  be  placed  in  an  honourable  light, 
ib. 

cultivation  of  the  soil  a  natural  obligation, 
ib. 

of  public  granaries,  36. 

propriety  of  establishment  of,  ib. 

management  of,  ib. 


CURRENT  OF  RIVERS, 

works  tending  to  obstruct,  unlawful,  122. 
of  preventing  alteration  in,  122,  note, 
right  to  soil  on  change  of,  121,  122. 

CUSTOMARY  LAW, 
what,  Pref.  Ixv. 
how  far  binding,  ib. 
foundation  and  extent  of,  ib. 
general  obligation  of,  ib. 
consent  to,  when  presumed,  Ixvi. 

DEGRADATION, 

suggestions  as  to,  to  prevent  duelling,  86. 

DFiMOCRACY.    See  GOVERNMENT. 
what,  2. 
empire  kept  by  body  of  nation  in  its  own 

hands,  ib. 
also  called  a  popular  government,  ib. 

DESERTERS, 

punishment  of,  299. 

DOMAIN.     See  COUNTRY,  PROPERTY. 

of  the  right  of,  183.  See  OBLIGATIONS 
AND  RIGHTS. 

DONATION, 

of  the  sovereign,  what,  228. 
distinction  between,  and  debts  of,  ib. 
should  be  with  a  view  to  public  welfare, 

ib. 

revocation  of,  ib. 
immunities  and  privileges  in  nature  of, 

ib. 
revocation  of,  ib. 

DUELLING, 

condemned,  84. 

means  of  putting  a  stop  to  this  disorder, 

84  to  86. 

suggestions  respecting,  84,  85. 
of  establishing  a  Court  of  Honour,  85, 

86. 

ECCLESIASTICS.  Set  RELIGION.  PO- 
PERY. 

of  the  sovereign's  authority  over,  63,  64. 

nature  of  this  authority,  64. 

role  to  be  observed  with  respect  to,  ib. 

should  be  subject  to  the  public  power,  ib. 

the  sovereign's  duty  towards  them,  ib. 

their  duty  to  the  state,  ib. 

reasons  establishing  sovereign's  right 
over,  64,  65. 

authorities  and  examples,  65. 

pernicious  consequences  of  a  contrary 
opinion,  ib. 

abuses  therefrom  particularized,  65,  66. 

ELECTIVE  STATE, 
what,  23. 
the  right  of  choosing  successor  on  death 

of  sovereign,  ib. 
elective  kings,  real  sovereigns,  24. 


INDEX. 


EMBASSY, 

right  of,  what,  452. 

of  sending   and   receiving  public  minis- 
ters, ib. 

of  the  necessity  thereof,  ib. 
done  by  the  agency  of  public  ministers,  ib. 
explanation  of  term  minister,  453. 
of  the  right  of  sovereigns   to  send  and 

receive  public  ministers,  t'6. 
right  not  taken  away  by  unequal  alliance, 

ib. 

or  by  a  treaty  of  protection,  t*6. 
right  of  princes  and  states  herein,  ib. 
cities  that  have  the  right  of  banner,  454. 
of  ministers  of  viceroys,  455. 
right  of  regents  during  an  interregnum, 

ib. 
molestation  in  exercise  of  right,  an  injury, 

ib. 
what  allowable  in  this  respect  in  time  of 

war,  455,  456. 
minister  of  friendly  power  to  be  received, 

456. 

of  resident  ministers,  t'6. 
how  ministers  of  an  enemy  to  be  admit- 
ted, 457. 

from  a  usurper,  when,  457,  458. 
instances  herein,  ib. 
EMIGRANT.    See  COUNTRY. 
who  are  emigrants,  106. 
right  to  emigrate,  106,  33. 
sources  of  their  right,  106. 

from  law  of  nature,  ib. 

or  fundamental  law  of  the  state,  t'6. 

from  voluntary  grant   of  sovereign, 
t'6. 

or  from  treaty  with  foreign  power, 

ib. 
infringement  of  their  right,  107. 

remedy  for  that  infringement,  t'6. 
ENEMY, 

Who  it  an  enemy,  321,  and  note, 
distinction  between   public    and   private 

enemy,  321. 

all  subjects  of  two  states  at  war  are  ene- 
mies, t'6. 

and  continue  so  in  all  places,  t'6. 
except  in  a  neutral  state,  t'6. 
women   and   children  are  enemies,  321, 

351. 

how  to  be  treated,  321,  362. 
in  case  of  sovereigns,  363. 
Of  things  belonging  to  the  enemy,  322. 
belong  to  the  nation  at  large,  t'6. 
continue  such  everywhere,  t'6. 
when  otherwise,  t'6. 
neutral  things  found  with  enemy  not  o, 

t6. 
lands  possessed  by  foreigners  in  enemy's 

country,  t'6. 
things    due   to   the   enemy   by   a  third 

party,  322,  323. 


ENEMY  (continued). 

Of  the  enemy's  allies,  323. 
treaties  of  alliance  in  war,  323,  324. 
defensive  and  offensive  treaties,  324. 
several  kinds  of,  323,  324. 
difference  between  warlike    associations 

and  auxiliary  treaties,  324. 
auxiliary  troops,  what,  t'6. 
subsidies,  what,  t'6. 
treaties  respecting,  t'6. 
when  a  nation  allowed  to  assist  another, 

t'6. 

general  principle  herein,  t'6. 
when  to  make  alliances  for  war,  324-5. 
of  alliances   made  with    nation  actually 

engaged  in  war,  325,  333. 
alliances  in  time  of  peace,  325,  333. 
tacit  clause  in  every  alliance,  325. 
refusing  succours  when    no    breach    of 

alliance,  326. 
casus  foederis,  what,  t'6. 
never  takes  place  in  an  unjust  war,  326, 

330. 

how  it  exists  in  a  defensive  one,  326. 
or  in  a  treaty  of  guarantee,  t'6. 
of  granting   or  refusing   succours,  326, 

327. 
of  two  parties   in  alliance  coming  to  a 

rupture,  327. 

duty  of  third  party  herein,  t'6. 
of  the  enemy's  associates,  328. 
who  deemed  such,  328  to  331. 
those  who  make  common  cause  with  him, 

are,  328. 
or  assist  him,  without  being  obliged  to  it 

by  treaties,  t'6. 
or  are  in  an  offensive  alliance  with  him, 

329. 
how  a  defensive  alliance  associates  with 

the  enemy,  t'6. 
in  what  case  it  does  not  produce  the  same 

effect,  329,  330. 
whether  necessary  to  declare  war  against 

enemy's  associates,  331. 
Of  the  right  over  things  belonging  to  the  ene- 
my, 364.     See  WAR. 
Of  levying  contributions  on  enemy's  country, 

366.     See  WAR. 
Of  faith  between  enemies,  371.     See  WAK. 

ENLISTMENT, 
of  troops,  294. 
in  foreign  countries,  298. 

ENVOY, 

who,  460. 

rank  of,  t'6. 

are  ordinary  and  extraordinary,  t'6. 

the  latter  held  in  greater  consideration, 

t'6. 
EQUITY,  COURT  OF, 

bill  in,  to  enforce  treaty,  not  sustainable, 
T.  in  note. 


632 


INDEX. 


ESCHEATAGE, 

•what,  176,  and  note, 
doctrine  of,  16. 

EXCHANGE.    See  MONEY  AND  EXCHANGE. 
of  money,  what,  47. 
a    custom    of    merchants    for    remitting 

money,  ib. 

should  be  supported  by  good  laws,  ib. 
duty  of  nations  herein,  ib. 

EXCOMMUNICATION.     See  POPERY. 
abuse  of  the  Pope's  power  herein,  73. 
of  men  in  office,  ib. 
of  sovereigns,  ib. 
instances  of  abuse,  74. 
abuses  not  confined  to  Popes,  ib. 
instances  hereof,  74,  75,  in  note. 

EXEMPTION, 

from  carrying  arms,  295. 

EXILE.    See  BANISHMENT. 
who  an  exile,  107. 

distinction  between,  and  banishment,  ib. 
one  driven  from  place  of  settlement,  ib. 
but  without  mark  of  infamy,  ib. 
time  of  exile  unlimited,  ib. 
when  a  punishment,  ib. 
is  voluntary  or  involuntary,  ib.,  108. 
voluntary,  if  to  avoid  punishment,  108. 
involuntary,   where    effect    of    superior's 

order,  ib. 

when  limited  to  place,  ib. 
right  of,  to  live  somewhere,  ib. 
though  right  only  an  imperfect  one,  ib. 
nations  may  refuse  him  admittance,  ib. 
but  not  without  good  reasons,  ib. 
cannot  punish  for  offences  committed  out 

of  their  territories,  109. 
except  for  safety  of  mankind,  ib. 
of  delivery  up  of  offenders,  109,  and  note. 

EXTERNAL  LAW, 
what,  Ixii. 

distinction  between,  and  internal,  Ixii. 
external  law  relates  to  men,  ib. 
internal  to  the  conscience,  ib. 

FALSEHOOD, 
what,  372,  373. 

distinction  between,  and  a  lie,  372. 
when   bound   to    speak  the   truth  to  an 
enemy,  373.     See  ENEMY. 

FEDERAL  REPUBLIC, 
what,  3. 

a  union  of  independent  states  by  a  per- 
petual confederacy,  3. 

FEUDATORY  STATES, 
what,  3. 

one  doing  homage  to  a  foreign  power,  3. 
though  still  a  sovereign  state,  ib. 


FOREIGNERS, 
described,  171. 
rules  with  respect  to,  171. 
conduct  state  should  observe  towards,  ib. 
right  of,  to  enter  territory,  172. 
subject  to  the  laws,  172,  173. 
and  punishable  according  thereto,  172. 
disputes  of,  how  judged,  172,  and  note, 
protection  due  to,  173. 
their  duties  towards  the  state,  ib. 
to  what  burthens  subject,  174. 
continue  members  of  their  own  country, 

t6. 

state  has  no  right  over  persons  of,  ib. 
nor  over  personal  property  of,  ib. 
who  are  the  heirs  of  a  foreigner,  175. 
right  of,  to  make  a  will,  ib. 
will,  how  affected  by  law  of  country,  ib. 
of  escheatage,  or  doctrine  of  alienage,  176, 

and  note. 

of  the  right  of,  traite  foraine,  177. 
of  immovable  property  possessed  by,  177, 

and  notes. 

cannot  inherit  real  property,  177,  note, 
exceptions  thereto  by  treaty,  177,  note. 
marriages  of,  177. 
validity,  and  proof  of,  177,  note. 

FOREIGN  JUDGMENT, 

effect  of,  and  proof  thereof,  166,  note. 
English     law    on   this    subject,   166,   in 
note. 

FOREIGN  LAW, 

how  proved,  173  and  note,  177,  note. 

GLORY, 

of  a  nation,  what,  91. 

advantages  of,  ib. 

duty  of  nation  to  establish,  ib. 

how  acquired,  ib. 

duty  of  the  prince  herein,  ib. 

of  the  citizens,  92. 

example  of  the  Swiss,  t'6. 

attacking  the  glory  of  a  nation,  93. 

GOVERNMENT, 

Of  the  several  kinds  of,  2. 
.  1.  Popular  or  Democratic,  ib. 
what,  ib. 

empire  kept  by  body  of  nation  in  its 
own  hands,  ib. 

2.  Aristocratic,  ib. 
what,  ib. 

where  intrusted  to  a  number  of  citizens, 
ib. 

3.  Monarchical,  ib. 
what,  ib. 

where  power  in  a  single  person,  ib. 
Principal  objects  of,  33. 

1.  To  provide  for  necessities  of  nation^ 

ib. 

duty  of  sovereign  herein,  t'6. 
should  procure  plenty,  ib. 


INDEX. 


GOVERNMENT  (continued). 

and  take  care  there  be  sufficient  work- 
men, 33. 

should  prevent  emigration  of  those  use- 
ful, t'6. 

and  punish  emissaries  enticing  them 
away,  34. 

should  encourage  labour  and  industry, 
ib. 

2.  To  procure  happiness  of  nation,  47. 
nation  should  labour  after  its  own  hap- 
piness, ib. 

should  instruct  people,  47,  48. 

educate  youth,  48. 

examples  of  ancient  states  herein,  t'6. 

should  foster  and  encourage  the  arts 
and  sciences,  ib. 

allow  freedom  of  philosophical  discus- 
sion, 49. 

inspire  a  love  of  virtue,  51. 

a  hatred  of  vice,  ib. 

hereby  intention  of  rulers  discovered, 

a. 

state,  <tc.  should  perfect  its  understand- 
ing and  will,  52. 

and  direct  knowledge  of  citizens  to  its 
welfare,  t'6. 

should  inspire  them  with  the  love  of 
country,  52,  53. 

so  in  each  individual,  53. 

the  like  between  the  nation  and  its 
sovereign,  t'6. 

definition  of  term  country,  53,  54,  101, 
103. 

man's  duty  towards  it,  54. 

criminal  to  injure  one's  country,  ib. 

the  glory  of  good  citizens,  ib. 

examples,  ib. 

3.  To  fortify  itself  against  external  attacks, 

87. 

of  national  strength,  ib. 
how  constituted,  ib. 
by  number  of  citizens,  ib. 
their  military  virtues,  ib. 
and  their  riches,  ib. 

increase  of  population,  and  how  ef- 
fected, ib. 

of  national  valour,  88,  89. 
.    other  military  virtues,  89. 
in  what  consists  the  wealth  of  a  nation, 

ib.,  90. 

not  in  revenues  of  sovereign,  89. 
but  in  that  of  individuals,  89,  90. 
strength  of  state  increased  thereby, 

90. 
when  may  be  employed  in  defence  of 

the  state,  ib. 
state  should  have  income  proportionate 

to  its  expenditure,  ib. 
of  the  public  revenue  and  taxes,  ib. 
should  not  increase  its  power  by  illegal 

means,  t'6. 


GOVERNMENT  (continued). 

power  of  nation  relative,  90. 

should   be    measured    by  that  of  its 

neighbours,  t'6. 
or  those  from  whom  it  has  any  thing 

to  fear,  t'6. 
is    sufficiently  powerful   when   it  can 

resist  attacks,  t'6. 
of  the  prudence  requisite  herein,  ib. 

GRANARIES, 

propriety  of  establishing  of,  36. 

GUARANTY.    See  TREATIES. 

for  observance  of  treaties,  235. 

what,  16. 

gives  the  guarantee  no  right  to  interfere, 
ib. 

nature  of  the  obligation  it  imposes,  236. 

cannot  impair  the  rights  of  a  third  party, 
t'&. 

duration  of  the  guaranty,  t'6. 
HARBOURS, 

of   seashore,    to   whom    belonging,   129, 

130. 

HEREDITARY    STATE.      See  SUCCESSIVE 
STATE. 

what,  24. 

origin  of,  t'6. 

when  may  be  changed,  t'6. 

of  renunciations,  25. 

how  far  binding,  ib. 

of  regents,  27. 

who  to  decide  disputes  respecting  succes- 
sion, t'6. 

foreign  powers  ought  not,  29. 
HOSPITALS.    See  WAX. 

erection  of,  for  invalids,  296. 

HOSTAGES.    See  TREATY. 

who  are  such,  238,  239. 

given  for  observance  of  treaties,  t'6. 

of  the  right  over  them,  239. 

their  liberty  alone  pledged,  t'6. 

when  they  are  to  be  sent  back,  t'6. 

whether  they  may  be  detained  on  any 
other  account,  t'6. 

may  be  detained  for  their  own  actions, 
240.  j, 

of  their  support,  t'6. 

to  be  provided  by  party  giving,  ib. 

subject  cannot  refuse  to  be,  241. 

but  a  vassal  may,  t'6. 

who  may  give  and  receive  hostages,  t"8. 

rank  of  hostages,  t'6. 

ought  not  to  escape,  t'6. 

on  escape,  should  be  sent  back,  242. 

death  of,  whether  to^be  replaced,  t'6. 

of  him  who  takes  the  place  of,  t"6. 

of  a  hostage  succeeding  to  the  crown,  t'6. 

to  be  released  on  delivery  of  another  suf- 
ficient hostage,  t'6. 

liability  of,  ends  with  treaty,  56. 


634 


INDEX. 


HOSTAGES  (continued). 

violation  of  treaty  an  injury  to  the  host- 
ages, .243. 

abandonment  of,  by  sovereign,  t'6. 
compensation  due  to  them  thereon,  t'6. 
fate  of,  when  he  who  has  given  them  fails 

in  his  engagement,  ib. 
may  transfer  his  allegiance,  ib. 
life  of,  cannot  be  taken,  ib. 

IMMUNITIES.    See  POPERY. 

abuse  of  popish  clergy  in  respect  of,  71. 
attempt  of,  to  escape  from  political  au- 
thority, ib. 
of  their  church  possessions,  72,  73. 

IMPERFECT  NATURALIZATION, 
what,  102. 

INHABITANT.     See  COUNTRY. 
who  deemed  such,  102. 
the  foreigners  settled  in  a  country,  ib. 
their  rights  and  duties,  ib. 
are  liable  to  the  laws,  ib. 
are  bound  to  defend  the  state,  ib. 
of  perpetual  inhabitants,  ib. 
who  are  such,  ib. 
children  of,  their  rights,  ib. 

INHERITANCE.    See  PROPERTY. 

right  of  parties  to  bequeath  property, 

116. 

limitation  of  right,  ib. 
law  of,  in  England,  116,  note. 

INSTRUCTIONS.       See     MINISTER,    PUB- 

LIC. 

to  public  ministers,  what,  461. 

INTERNAL  LAW  OF  NATIONS, 
what,  Iviii. 
why  so  called,  ib. 

INTERNAL  POLICE, 
what,  83. 

essential  to  preserve  order,  ib. 
regulations  to  enforce,  ib. 
Holland  instanced,  ib. 

INTERNATIONAL  COURT, 
difficult  to  establish,  liii. 
observations  hereon,  ib. 

JURISDICTION, 
of  a  nation,  166. 
nature  and  extent  of,  ib. 
nations  should  respect  right  of,  ib. 
effect  of,  in  foreign  countries,  ib.,  and  n. 
(107). 

JUS  POSTLIMINIUM, 
right  of,  defined,  392. 
foundation  of  right,  ib. 
duty  of  sovereign  herein,  ib. 
how  right  takes  effect,  393. 
whether  among  allies,  ib. 


JUS  POSTLIMINIUM  ((continued). 

of  no  validity  in  neutral  nations,  393. 

what  things  recoverable  by  this  right, 
394. 

right  when  presumed  to  be  relinquished, 
ib. 

of  persons  who  cannot  return  to  right  of, 
ib. 

but  enjoy  it  when  retaken,  ib. 

whether  right  extends  to  property  alien- 
ated by  enemy,  395. 

distinction  between  movable  and  immov- 
able property,  ib. 

whether  a  subdued  nation  can  enjoy  this 
right,  396. 

distinction  herein,  ib. 

right  for  what  is  restored  at  the  peace, 
397. 

for  things  ceded  to  the  enemy,  ib. 

does  not  exist  on  conclusion  of  peace,  ib. 

why  always  in  force  for  prisoners,  ib. 

how  rights  of  prisoners  subsist,  398. 

will  of  prisoner  at  war,  ib. 

marriage  not  dissolved  by  captivity  of  ono 
of  the  parties,  ib. 

regulations  respecting  right  of,  established 
by  treaty  or  custom,  ib. 

JUSTICE  AND  POLITY, ' 

necessity  for  observance  of,  77,  160. 

a  nation  ought  to  make  justice  reign,  77. 

methods  of  doing  so,  ib. 

by  establishing  good  laws,  ib. 

by  enforcing  execution  of  them,  77,  78. 

duty  of  prince  in  this  respect,  78. 

how  he  is  to  dispense  justice,  ib. 

should  appoint  enlightened  and  upright 
judges,  ib. 

ordinary  courts  should  determine  revenue 
causes,  79. 

should  establish  supremo  courts,  ib. 

of  the  right  of  appeal,  ib. 

prince  should  preserve  forms  of  justice,  80. 

should  support  authority  of  judges,  t'6. 

of  distributive  justice,  ib. 

meaning  of  term,  ib. 

should  regulate  distribution  of  employ- 
ments and  rewards,  ib. 

of  the  punishment  of  transgressors,  81. 

foundation  of  right  to  punish,  t'6. 

who  to  punish,  t'6. 

of  the  criminal  laws,  ib. 

necessity  of,  to  prevent  crime,  t'6. 

of  the  degree  of  punishment,  82. 

should  be  limited  to  safety  of  state,  t'6. 

should  be  proportioned  to  guilt  of  party, 
t'6. 

should  not  be  sanguinary,  t'6. 

consequences  thereof,  ib. 

execution  of  the  laws,  82,  83. 

to  whom  belongs,  82. 

duty  in  this  respect,  82,  83. 


INDEX. 


635 


JUSTICE  AND  POLITY  (continued). 
should  not  aggravate  the  sentence,  83. 
of  pardoning,  ib. 
an  attribute  of  the  sovereign,  ib. 
how  to  be  exercised,  ib. 
of  the  internal  police,  ib. 
in  what  it  consists,  ib. 
essential  to  preserve  order,  ib. 
regulations  to  enforce,  ib. 
Holland  instanced,  ib. 
of  duelling  or  single  combat,  84. 
custom  of,  condemned,  ib. 
means  of  putting  a  stop  to  this  disorder, 

84-87. 

of  the  observance  of  justice  between  na- 
tions, 160. 

necessity  for  observance  of,  ib. 
obligations    of  nations    to    cultivate    it, 

ib. 
right  of  refusing  to  submit  to  injustice, 

161. 
right  a  perfect  one,  and  produces,  ib. 

the  right  of  defence,  ib. 

and  right  of  doing  ourselves  justice, 

ib. 

right  to  punish  injustice,  ib. 
right  of  nations  against  one  that  openly 

despises  justice,  ib. 

KING.    See  SOVEREIGN,  SOVEREIGN  STATE. 

LAKE.     See  RIVERS,  STREAMS,  and  LAKES. 
proprietors  of,  who,  123. 
of  the  increase  of  lakes,  ib. 
of  the  land  formed  on  banks  of,  125. 
to  whom  belonging,  ib. 
•where  bed  of,  dried  up,  ib. 
jurisdiction  over  lakes  and  rivers,  ib. 

LAW  OF  NATIONS, 

defined,  Iv. 

idea  and  general  principles  of  the  law  of 

nations,  Iv.,  Iviii. 

what  meant  by  a  nation  or  state,  Iv. 
it  is  a  moral  person,  ib. 
definition  of  the  law  of  nations,  ib. 

general  view  of,  and  how  ascertained,  ib., 
n.  (1). 

present  sources  of  information   thereon, 
Iv. 

violation  of,  when  a  ground  of  war,  ib. 

no  permanent  or  general  court  of,  ib. 

teaches  rights  and  obligations  of  nations, 
Iv.  in  note. 

knowledge  of,  essential,  ib. 

how  knowledge  of,  ascertained,  t'6. 

Christianity  the   unfailing   rule  in   con- 
struction of,  ib. 

in  Great  Britain  held  to  be  part  of  law 
of  the  land,  ib. 

sources  of  information  respecting,  enume- 
rated, ib. 
In  what  light  nation  considered,  IvL 


LAW  OF  NATIONS  (continued). 

In  what  laws  it  originally  consisted,  .vi.      m 
originally  the  law  of  nature,  ib. 
though  limited,  Ac.,  by  circumstances,  t'6. 
definition  of  the  necessary  law  of,  Iviii. 
application  of,  to  nations,  ib. 
internal  law  of  nations,  what,  ib. 
natural  law  of,  what,  ib. 
it  is  immutable,  ib. 
nations  cannot  make  change  in,  ib. 
nor  dispense  with  obligations  arising  from 

it,  ib. 

treaty,  Ac.,  contravening,  unlawful,  lix. 
when  otherwise,  t'6. 
Society  established    by   nature    between   all 

mankind,  ib. 
as  between  men,  t'6. 
as  between  nations,  Ix. 
object  of  this  society  of  nations,  Ixi. 
general  obligations  herein,  ib. 

1.  to  benefit    other   nations  without 

prejudice  to  itself,  Ixii. 

2.  the  peaceable  enjoyment  of  liberty 

and  independence,  ib. 
effect  of  that  liberty,  Ixii.,  367. 
nation  may  judge  for  itself,  t'6. 
of  making  war  for  injuries  to,  Ixiv. 
extent  of  that  right,  t'6. 
Distinctions  between  internal   and  external, 

perfect  and  imperfect  obligations  and 

rights,  Ixii. 
internal  obligation  binds  the  conscience, 

t'6. 

external  relates  to  men,  t'6. 
internal  obligation  is  of  the  same  nature, 

t'6. 

though  varying  in  degree,  t'6. 
external  is  divided  into  perfect  and  imper- 
fect, t'6. 

perfect,  what,  t'6. 
imperfect,  what,  t'6. 
Equality  of  nations,  Ixiii. 
all  naturally  equal,  16. 
and  inherit    the    same    obligations   and 

rights,  t'6. 

without  regard  to  power  or  weakness,  ib. 
effect  of  that  equality,  t'6. 
each  nation  mistress  of  her  own  actions, 

t'6. 
when  rights  of  others  not  affected  thereby, 

t'6. 

Voluntary  law  of  nations,  ib.  and  note, 
what  meant  thereby,  t'6. 
right  of  nations  against  infractors  of,  Ixir. 
right  of  declaring  war,  t'6. 
measure  of  that  right,  t'6. 
Conventional  law  of  nations,  Ixv.   and  n. 

(Ixiv). 

what,  and  who  bound  by,  Ixv. 
Customary  law  of,  t'6. 
founded  on  a  tacit  consent,  t'6. 
how  distinguished,  t'6. 


636 


INDEX. 


LAW  OF  NATIONS  (continued). 
general  rules  respecting,  Ixv. 
how  far  obligatory,  Ixvi. 
when  may  be  relinquished,  ib. 
Positive  law  of,  ib. 
is  of  three  kinds,  ib. 
voluntary,  ib. 
customary,  ib. 
conventional,  ib. 
from  whence  proceeding,  ib. 
deduced  from  the  will  of  nations,  ib. 
distinguished   from   natural  or  necessary 

law  of  nations,  ib. 
General  maxim  respecting  use  of  necessary 

and  voluntary  law  of  nations,  ib. 
LEGISLATIVE  POWER, 
what,  11. 
to  whom  intrusted,  ib. 

may  be  to  the  sovereign,  ib. 
or  to  an  assembly,  ib. 
or  to  both  jointly,  ib. 
right  of,  to  change  the  constitution,  ib. 
only  extends  to  civil  and  political  laws, 

ib. 

and  not  to  fundamental  laws,  ib. 
LETTER  OF  MARQUE.    See  REPRISAL. 

what,  285. 
LIE, 

distinction  between,  and  mere  falsehood, 

372,  373. 
when   bound   to   speak   the  truth  to  an 

enemy,  373.    See  ENEMY. 
MANIFESTOES, 

what,  319. 
MARITIME  LAW, 

ancient  codes  relating  to,  Iv.  in  note, 
is  imperfect,  ib. 
MARRIAGE, 

of  aliens,  177,  and  note. 

validity  and  construction  of,  in  England, 

166,  note,  177,  note, 
how  proved,  177,  note, 
not  dissolved  by  captivity  of  one  of  the 

parties,  398. 
MEDIATION, 
what,  276. 
in  time  of  peace,  ib. 
in  time  of  war,  437. 
MERCENARY  SOLDIERS. 

who,  297. 
MILITARY  DISCIPLINE, 

importance  of,  considered,  299. 
MILITARY  LAWS, 

necessity  of,  considered,  299. 
MINISTERS,  PUBLIC, 
who  are,  453. 

of  the  several  orders  of,  459. 
their  origin,  ib. 
their  representative  character,  ib. 


MINISTERS,  PUBLIC  (continued). 

Of  ambassadors,  459.     See  AMBASSADOR. 

are  ordinary  or  extraordinary,  ib. 

distinction  herein,  ib. 

privileges  of,  and  rights,  ib.,  and  n.  (464). 
Of  envoys,  460. 

are  ordinary  or  extraordinary,  ib. 

importance  of  the  latter,  ib. 
Of  residents,  ib. 

of  ministers  simply  so  called,  ib. 

representative  character  of,  ib. 

distinction  between  and  ministers  extra- 
ordinary, 460,  461. 

of  consuls,  agents,  deputies,  commission- 
ers, Ac.,  461. 

credentials,  what,  ib. 

character  of  minister  known  by,  ib. 
Instructions  of,  defined,  ib. 

what  they  contain,  ib. 
Sight  of  sending  ambassadors,  461,  462. 
Of  the  rights,  privileges,  and  immunities  cf, 
464. 

of  the  respect  due  to  them,  ib. 

persons  of,  sacred  and  inviolable,  ib. 

privilege  of,  from  arrest,  459,  note. 

particular  protection  due  to  him,  465. 

injuries  to,  how  redressed,  ib. 

when  protection  to,  commences,  466. 

what   due  to  them  in  countries  through 

which  they  pass,  ib. 

Of  ambassadors  going  to  an  enemy's  country, 
467. 

when  may  be  arrested,  ib. 

instance  of  arrest,  ib. 

of  embassies  between  enemies,  ib. 

necessity  for,  ib. 
Of  heralds,  trumpeters,  and  drummers,  468. 

are  privileged  messengers,  ib. 

persons  of,  to  be  respected,  ib. 

even  in  civil  war,  468,  469. 

may  bo  refused  admittance,  when,  469. 

appearance  of  insult  to,  should  be  avoided, 
ib. 

by  and  to  whom  they  may  be  sent,  470. 
Independence  of  foreign  ministers,  ib. 

how  they  should  behave,  472. 

independence  of,  not  to  be  converted  into 
licentiousness,  ib. 

must  conform  to  the  customs  and  laws  of 
the  country,  472,  473. 

so  far  as  consistent  with  his  mission,  472. 
Tampering  with  fidelity  of,  473. 
Bribery  of,  and  when  excusable,  473,  474. 

of  making  presents,  Ac.,  by,  ib. 
How  punishable,  475,  478. 

1.  for  ordinary  transgressions,  475. 

2.  for  offences  against  the  prince,  ib, 
right  of  ordering  away,  ib. 

or  of  repressing  him  by  force,  if  he  be- 
haves as  an  enemy,  476. 

or  where  he  forms  dangerous  plots  and 
conspiracies,  ib. 


INDEX. 


63T 


MINISTERS,  PUBLIC  (continued). 

instances  of  dismissal,  477. 

what  may  be  done  to  him,  according  to 
the  exigencies  of  the  case,  478. 

of  ambassador  attempting  the  life  of  the 
sovereign,  479. 

instances  respecting  immunities  of  public 
ministers,  480,  481. 

what  reprisals  may  be  made  on,  481. 

why  not  in  general  permitted,  481,  482. 
Agreements  of  nations  respecting  privilege* 
of,  482. 

allowed  the  free  exercise  of  his  religion, 
483. 

exemption  of,  from  imposts,  484 

to  what  extent,  ib. 

this  obligation  founded  on  use  and  cus- 
tom, 485. 
Of  secret  ministers,  ib. 

rights  and  duties  of,  485,  486. 

of  a  sovereign  in  a  foreign  country,  486. 

conduct  to  be  pursued  towards,  ib. 

his  rights,  privileges,  and  security,  486, 

487. 
Of  deputies  to  states,  487. 

rights  and  immunities  of,  ib. 

safety  to  persons  of,  ib. 

MINISTERS     OF    RELIGION.      See    RE- 
LIGION. 
MISSIONARIES, 

of  their  employment  in  religious  matters, 
158. 

of  refusal  of  admittance  to  them,  ib. 
MONARCHY.    See  GOVERNMENT. 

denned,  2. 

a  government  confided  to  one  person,  2. 

form  of,  considered,  2,  in  note. 
MONEY  AND  EXCHANGE, 

Of  the  establishment  of  money,  45. 

utility  and  convenience  of,  ib. 

commerce  facilitated  by,  ib. 

duty  of  nation  with  respect  to  coin,  f b. 

impression  on  the  seal  of  its  standard 
value,  ib. 

should  be  coined  in  sovereign's  name,  ib. 

amount  of  coinage,  ib. 

of  increasing  value  of,  when  inexpedient, 
ib. 

rights  in  respect  of,  46. 

state  alone  has  the  right  of  coining,  ib. 

of  counterfeiting  coin,  ib. 

an  offence  against  the  sovereign,  ib. 

though  made  of  standard  value,  ib. 

coining  a  prerogative  of  majesty,  ib. 

how  one  nation  may  injure  another  in  the 
article  of  coin,  47. 

as  by  counterfeiting,  ib. 

or  protecting,  Ac.  those  who  do,  ib. 

all  princes  equally  interested  in  extermin- 
ating them,  ib.,  and  note. 
Of  exehange  and  the  law  of  commerce,  47. 


MONEY  AND  EXCHANGE  (continued). 
a    custom    of   merchants    for    remitting 

money,  47. 

should  be  supported  by  good  laws,  ib. 
duty  of  nations  herein,  ib. 
MONOPOLY.    See  COMMERCE. 

duty  of  sovereign  to  hinder,  1x6. 
MUNICIPAL  COURT.    See  JURISDICTION. 
jurisdiction  of,  Iv.  in  note, 
cannot  enforce  treaty,  ib. 
when  otherwise,  ib. 
NATION.    See  STATE. 

law  of.    See  LAW  OP  NATIONS. 

meaning  of  term  nation,  Iv.,  1. 

is  a  moral  person,  ib. 

susceptible  of  obligations  and  rights,  Iv., 

4. 

of  the  state  and  sovereignty  of,  1. 
of  the  several  kinds  of  government  of,  2. 
General  principle  of  the  duties  of  a  nation 

towards  itself,  4. 

should  act  agreeably  to  its  nature,  ib. 
should  preserve  and  perfect  itself,  ib. 
in  what  consists  its  preservation,  ib. 
what  its  perfection,  ib. 
what  is  the  end  of  civil  society,  5. 
of  the  nation's  obligation  to  preserve 

itself,  ib. 

also  to  preserve  its  members,  ib. 
has  a  right  to  everything  necessary  for 

its  preservation,  6. 
or  which  may  promote  that  end,  ib. 
should  avoid  every  thing   that   might 

occasion  its  destruction,  6,  7. 
should  be  perfect  in  itself  and  state,  6. 
should    avoid     every    thing    contrary 

thereto,  7. 

of  the   right  derived  from  these  obli- 
gations, ib. 
examples,  ib. 

a  nation  ought  to  know  itself,  8. 
Common  duties  of,  towards  others,  133. 
foundation  of  these  duties,  133,  134. 
offices  of  humanity,  134,  135. 
difference  of  religion   should  not  pre- 
clude  the   performance   of  them, 
139. 

instances,  139,  140,  and  notes, 
general  principle  of  the  mutual  duties 

of  nations,  135.  * 

duties  of  a  nation  for  the  preservation 

of  others,  ib. 

should   assist  a  nation  affected  with 
famine    or    other    calamity,    136, 
and  note, 
instances,  136. 
should  contribute  to  the  perfection  of 

others,  136,  137. 
of  the  right  to  require  the  offices  of 

humanity,  138. 

of  the  right  to  refuse  them,  ib. 
3D 


638 


INDEX. 


NATION  (continued). 

performance  of,  cannot  be  enforced,  138. 
mutual  love  of  nations,  ib. 

each  nation  should  cultivate  the  friend- 
ship of  others,  138,  139. 

and  perfect  itself  for  the  advantage  of 
others,  139. 

to  take  care  of  their  glory,  ib. 

rule  and  measure  of  the  offices  of  hu- 
manity, 140. 

particular  limitation  with  regard  to  the 
prince,  141. 

no  nation  ought  to  injure  others,  141, 
142. 

meaning  of  the  word  injure,  141,  note. 

how  far  one  nation  may  injure  the  com- 
merce of  another,  142,  note. 

case  of  revolted  colony,  ib. 

should  avoid  giving  offence  to  others, 
142,  143. 

of  the  publication  of  libels,  143,  note. 
Of  the  protection  sought  by  a  nation,  93. 

of  simple  protection,  93,  94. 

how  obtained,  and  terms,  ib. 

reservation  of  right  of  government,  ib. 

voluntary  submission  of  one  nation  to 
another,  94. 

when  may  lawfully  do  so,  16. 

on  what  terms,  ib. 

of  the  different  kinds  of  submission,  ib. 

may  leave  inferior  nation  a  part  of  the 
sovereignty,  ib. 

may  totally  abolish  it,  ib. 

may  incorporate  the  two  in  one,  ib. 

right  of  citizens  when  nation  submits  to  a 
foreign  power,  ib. 

when  not  bound  to  submit,  ib. 

may  sell  effects  and  retire  elsewhere,  94, 
106. 

these  compacts  how  annulled,  95. 

by  failure  of  protection,  95,  96,  and 
note. 

through  want  of  good  faith,  95. 

by  infidelity  of  party  protected,  ib. 

by  encroachments  of,  protected,  ib. 

by  silence  of  party  protected,  95,  96. 
Of  the  separation  of  a  nation  from  a  state  of 
which  it  is  a  member,  96,  97. 

difference  between  incorporated  nations 
and  those  merely  in  a  state  of  sub- 
jection, 16. 

failure  of  protection  alone  no  ground  of 
separation,  ib. 

their  duty  when  in  danger,  97. 

to  use  endeavours  to  maintain  themselves 
in  their  present  state,  ib. 

if  overcome  by  force,  may  treat  with  the 
conqueror,  ib. 

their  right  when  abandoned,  97,  98. 

may  provide  for  their  own  safety,  97. 

instances,  97,  98. 
Of  the  establishment  of,  in  a  country,  98. 


NATION  (continued). 

possession  of,  and  how  acquired,  98. 
exclusive  right  thereto,  ib. 
comprehends  two  things,  ib. 
right  of  domain  and  empire,  ib. 
acquisition  of,  in  a  vacant  country,  99. 
empire  over,  acquired  with  domain,  t'6. 
another  mode  of  acquiring  it,  t'6. 
of  appropriation  of  a  desert  country  by  a 

nation,  ib. 

must  take  entire  possession,  t'6. 
where   possession   in    a    few   wandering 

tribes,  99,  100,  101. 
by  treaties,  153. 
our  duty  to  conform  to  general  customs, 

153,  and  note. 
of  mutual  respect  sovereigns   owe  each 

other,  153. 
how    sovereign    ought   to    maintain    hia 

dignity,  154. 

Of  the  right  of  nation  to  security,  ib. 
nature  of  this  right,  ib. 
gives  the  right  of  resistance,  154,  161. 
and  of  obtaining  reparation,  155,  161. 
gives  the  right  of  punishing,  t'6. 
right  of,  against  a  mischievous  people,  ib. 
cannot   interfere    in   the  government  of 

another  state,  155,  and  note. 
one  sovereign  cannot  make  himself  judge 

of  conduct  of  another,  155. 
how  far  may  interfere   in  a  quarrel  be- 
tween a   sovereign   and  his  people, 

157. 
right  of  opposing  such  interference,  157, 

158. 
no  nation  to  be  restrained  as  to  religion, 

158. 
offices    of  humanity  in    these    matters, 

t'6. 

Of  missionaries,  ib 
may   order    them    to    leave    dominions, 

ib. 

their  duty  to  obey,  t'6. 
of  the  circumspection  to  be  used  herein, 

159. 
what  sovereign   may   do  in   favour  of 

those   who    profess    his   religion    in 

another  state,  159,  160. 
Of  colonies,  101. 
when  they  become  a  part  of  the  mother 

country,  t'6. 
Of  the  things  relating  to  that  establishment,  ib. 

See  COUNTRY. 
Of  the  mutual  commerce  between  nations,  143. 

See  COMMERCE. 

Of  the  dignity  and  equality  of  nations,  149. 
dignity  of  nations  or  sovereigns,  ib. 
their    obligation    to    maintain    it,    149, 

154. 

their  equality,  149. 
their  precedence,  t'6. 
none  can  claim  it  as  a  right,  ib. 


INDEX. 


639 


NATION  (continued). 

how  far  power  and  antiquity  of  state  give 
it  precedence,  149. 

form  of  government  immaterial,  150. 

state  to  keep  its  rank,  though  govern- 
ment changed,  ib. 

treaties  and  established  customs  to  be 
observed,  t'6. 

instances  herein,  150,  151. 

of  the  name  and  honours  given  by  the 
nation  to  its  conductor,  151. 

rule  of  conduct  in  this  respect,  ib. 

right  of  sovereign  to  assume  honours  and 
titles,  152. 

right  of  other  nations  in  this  respect, 
152. 

their  duty,  ib. 

how  titles  and  honours  may  be  secured, 

153. 

Of  the  observance  of  justice  between  nations, 
160.     See  JUSTICE  AND  POLITY. 

necessity  for  observance  of,  160.  m 

obligation  of  nations  to  cultivate  it,  t'6. 

right  of  refusing  to  submit  to  injustice, 
161. 

this  right  a  perfect  one,  ib.,  and  pro- 
duces, 

the  right  of  defence,  t'6. 
the   right  of  doing  ourselves  justice, 

ib. 
and  right  to  punish  injustice,  t'6. 

right  of  nations  against  one  that  openly 

despises  justice,  t'6. 

P/   terminating    disputes    between    nations, 
274. 

general  observations  herein,  t'6. 

every  nation  bound  to  give  satisfaction, 
275. 

how  nations  may  abandon  their  rights 
and  complaints,  t'6. 

duty  of  sovereign  to  insist  on  compen- 
sation for  wrongs  to  his  subjects, 
276. 

means  suggested  by  the  law  of  nature 
for  terminating  their  disputes,  t'6. 

1.  by  amicable  accommodation,  t'6. 

2.  by  compromise,  t'6. 

3.  by  mediation,  t'6. 

4.  by  arbitration,  277,  278. 

these  several  modes  described,  276, 
278. 

of  conferences  and  congresses,  278. 

distinctions  to  be  made  between  evident 
and  doubtful  cases,  278. 

between  essential  rights  and  inferior  ones, 
279. 

of  resorting  to  force  in  doubtful  cases, 
280. 

when  conciliatory  measures  maybe  dis- 
pensed with,  t'6. 

effect  of  voluntary  law  of  nations,  280, 
281. 


NATION  (continued). 

equitable    conditions   to   be  offered,  281, 

282. 
rights  of  party  in  possession  in  doubtful 

cases,  t'6. 
how  reparation  of  injury  to  be  sought, 

t'6. 

of  retaliation,  282,  283. 
when,  and  how  far  justifiable,  t'6. 
of  the  various  modes  of  punishment  with- 
out resorting  to  arms,  283. 
of  retortion,  what,  t'6. 
of  reprisals,  what,  283,    284.     See  RE- 
PRISAL. 

Of  the  glory  of  a  nation,  91.     See  GLORY. 
Of  the  concern  a  nation  may  have  in  the 
actions    of   her    citizens,  161.       See 
CITIZEN. 
Of  the  effects  of  domain  between  nation*,  164. 

See  COUNTRY. 
Of  the  rights   common  to  all  nations,  178. 

See  OBLIGATIONS  AND  RIGHTS. 
Of  war  between  nations,  290.     See  WAR, 
Of  peace  between  nations,  and  obligation  to 
cultivate  it,  428.     See  PEACE. 

NATIVES.    See  COUNTRY. 
who  are,  101. 
those  born  of  parents  who  are  citizen?, 

t'6. 

succeed  to  rights  of  parents,  101,  Ac. 
born  of  foreigners,  101. 
become  citizens  by  tacit  consent,  t'6. 

NATURALIZATION, 
what,  102,  and  n. 
by  whom  granted,  102. 
of  imperfect  naturalization,  t'6. 
of  naturalization  by  birth,  ib. 
instances,  t'6.  in  note. 

NATURAL  LAW, 

what,  Iviii.  in  note. 

defined  to  be  the  science  of  the  law  of 

nature,  Ixvii.  in  note. 
of  God  and  our  conscience,  t'5. 
the  basis   of  the  law  of  nations,  Iv.  in 

note, 
nations  subject  to,  and  bound  by,  Ivi. 

NECESSARY  LAW, 
what,  Iviii. 

application  of,  to  nations,  t'6. 
why  so  called,  t'6. 
is  immutable,  t'6. 
nations  cannot  vary,  t'6. 

or  dispense  with  its  obligations,  t'6. 
maxim  concerning  use  of,  Ixvi. 

NEUTRALITY, 
what,  332. 

of  neutral  nations,  t'6. 
conduct  to  be  observed  by,  t'6. 
impartiality  of,  t'6. 


640 


INDEX. 


NEUTRALITY  (continued). 

in  what  it  consists,  332. 

relates  solely  to  war,  ib. 

what  a  breach  of  neutrality,  332,  333. 

an  ally  may  furnish  succour  due  from 
him,  333. 

and  yet  remain  neuter,  ib. 

of  the  right  of  remaining  neuter,  ib. 

all  nations  may  remain  so,  ib. 

unless  otherwise  bound  by  treaties,  ib. 

when  they  should  join  in  the  contest,  ib. 

treaties  of  neutrality,  ib. 

when  lawful  to  enter  into,  ib. 

when  from  necessity,  ib. 

when  with  both  parties,  333,  334. 

foundation  of  rules  of  neutrality,  334. 

how  levies  may  be  allowed,  Ac.,  without 
breach  of,  ib. 

of  breach  of,  generally,  334,  335. 

trade  of  neutral  nations  with  those  at  war, 
335,  and  note. 

of  seizing  the  property  thereof,  336. 

passage  of  troops  through  neutral  coun- 
try, 340. 

of  the  right  thereof,  ib. 

when  may  be  refused,  340,  343,  345. 

permission  must  be  applied  for,  340. 

may  be  refused  for  good  reasons,  341. 

as  where  war  unjust,  345. 

in  what  case  may  be  forced,  341. 

fear  of  danger  authorizes  a  refusal,  342, 
343. 

or  a  demand  of  every  reasonable  security, 
342. 

whether  necessary  to  give  security  re- 
quired, ib. 

equality  to  be  observed  towards  both  par- 
ties as  to  the  passagr/,  343. 

no  complaint  lies  against  neutral  state  for 
granting  passage,  ib. 

state  may  refuse  from  fear  of  resentment 
of  opposite  party,  ib. 

or  lest  her  country  should  become  the 
theatre  of  war,  ib. 

what  included  in  grant  of  passage,  344. 

to  include  all  connected  with  passage  of 
troops,  ib. 

safety  of  passage,  ib. 

hostilities  not  to  be  committed  in  neutrals' 
country,  ib. 

sea,  when  considered  part  of  territory, 
344,  in  note. 

of  contraband  goods,  337. 

what  deemed  such,  ib. 

distinctions  as  to,  ib. 

when  may  be  confiscated,  ib. 

of  searching  neutral  ships,  338,  339,  and 
note. 

foundation  of  right  to  do  so,  339. 

neutral  ship  refusing  to  be  searched,  and 
consequences,  ib. 

may  be  condemned  as  a  prize,  ib. 


NEUTRALITY  (continued). 

manner  of  search   generally   settled    in 

treaties,  339. 
credit  usually  given   to  certificates,  and 

bill  of  lading,  ib. 

unless  fraud  apparent,  339,  and  notes, 
of  enemy's  property   on    board    neutral 

ship,  339. 

liability  thereof  to  seizure,  339,  and  note, 
of   neutral's  property  on  board  enemy's 

ship,  339. 

restoration  thereof  to  neutral,  ib. 
latter  to  bear  any  loss  resulting  from 

capture,  ib. 
of  trading  with   a  besieged  town,  339, 

and  note, 
commerce    with,   absolutely    prohibited, 

339. 
of  blockade,  and  violation  thereof,  339, 

and  note.     See  BLOCKADE. 
of  impartial  offices  of  neutrals,  340. 
duty  of,  towards  belligerents,  ib. 
may  render  impartial  assistance,  ib. 
other  assistance  by  treaty,  Ac.,  ib. 
enemy  pursuing   ship   into   neutral  port 

must  refrain  from  hostilities  there, 

344,  note. 

nor  can  ship  be  condemned  in,  344,  note, 
neutral  country  not  to  afford  a  retreat  to 

troops,  345. 

conduct  of  troops  passing  through  neu- 
tral country,  ib. 
stipulations    for  indemnification    against 

loss,  ib. 

OATH.    See  TREATIES. 

of  the  use  of,  in  treaties,  232. 

does  not  constitute  the  obligation,  ib. 

or  change  the  nature  thereof,  ib. 

or  give  pre-eminence  of  one  treaty  above 

another,  233. 
does  not  give  force  to  an  invalid  treaty, 

ib. 
of  asseverations,  ib. 

OBLIGATIONS  AND  RIGHTS. 
Distinctions  respecting,  Ixii. 
are  internal  and  external,  ib. 
or  perfect  and  imperfect,  ib. 
Internal  obligation,  ichat,  ib. 
binding  on  the  conscience,  ib. 
always  of  the  same  nature,  ib. 
External,  what,  ib. 
relates  to  men,  Ac.,  ib. 
is  either  perfect  or  imperfect,  ib. 
perfect  where  performance  may  be  com- 
pelled, ib. 

imperfect  when  only  a  right  to  ask,  ib. 
Of  rights  retained  by  all  nations,  178. 
of  what  rights  men  cannot  bo  deprived, 

ib. 

right  still  remaining  from  primitive  state 
of  communion,  ib. 


INDEX. 


641 


OBLIGATIONS,  &c.  (continued). 

introduction  and  tacit  restriction  there- 
on, 178.     • 

right  retained  by  each  nation  over  the 
property  of  others,  ib. 

right  of  necessity,  ib. 

right  of  procuring   provisions  by  force, 
179. 

when  this  right  may  be  resorted  to,  ib. 

right  of  making  use    of  things   belong- 
ing to  others,  ib. 

compensation  for  the  same,  ib. 

of  pressing   vessels   in  cases   of  neces- 
sity, ib. 

compensation  to   be  made   for  services, 
ib. 

right  of  carrying  off  women,  ib. 

instance  of  the  rape  of  Sabine  women, 
fb. 

right  of  passage,  180. 

none  can  be  deprived  of,  ib. 

though  right  limited,  ib. 

right  of,  from  necessity,  ib. 

when  may  be  enforced,  ib. 

when  to  escape  from  danger,  ib. 

of  right  of  vessel  to  force   entry  in  a 
foreign  port,  ib. 

right  of  procuring  necessaries,  ib. 
•  right  of  dwelling  in  a  foreign  country, 
ib. 

right  herein  defined,  180,  181. 

right    of   use    of   things    inexhaustible, 
181. 

instances  of  rights,  ib. 

right  of  innocent  use,  and  what  meant 
thereby,  181,  182. 

nature  of  this  right  in  general,  182. 

who  to  decide  thereon,  ib. 

where  right  doubtful,  ib. 

in  cases  not  doubtful,  ib. 

exercise  of  this  right  between  nations, 

182,  183. 
Of  the  right  of  domain,  183. 

exercise  of  that  right  by  nations,  ib. 

general  duty  of  the  proprietor,  ib. 

bound  to  grant  a  lawful  passage,  ib. 

but  sureties  may  be  required,  184. 

passage  of  merchandise,  ib. 

right  of  residence,  184,  171. 

should  in  general  be  granted,  184. 

unless   required   for   unlawful  purposes, 
ib. 

what,    no    ground    for    expulsion,    184, 
185. 

how  to  act  towards  foreigners  desiring  a 
perpetual  residence,  185. 

of  the   right  accruing  from  a  general 
permission,  ib. 

of  right  granted  as  a  favour,  186. 

the  nation  ought  to  be  courteous,  ib. 

FACTION.    See  TREATY,  COITVENTIOK. 
81 


PARDON, 

right  of,  in  whom,  83. 

an  attribute  of  sovereignty,  ib. 

of  the  exercise  thereof,  ib. 

should  be  without  injury  to  any  one,  ib. 

or  where  welfare  of  state  requires  an 

exception,  ib. 
exercise    of,  should  be  for  advantage 

of  society,  ib. 
PASSPORT, 
what,  416. 

distinction  as  to,  and  safe  conduct,  ib. 
by  whom  granted,  459,  in  note,  105. 

PATRIMONIAL  STATE, 
what,  30. 

doctrine  of,  refuted,  25,  30,  435. 
true  sovereignty  inalienable,  25,  31,  32, 

and  notes. 
duty  of  sovereign  empowered  to  appoint 

successor,  32,  435. 
must   have    at   least  a  tacit  ratification, 

32,  33. 
PEACE, 

what  peace  is,  429,  430. 
obligation  to  cultivate  it,  430. 
sovereign's  obligation  herein,  t'6. 
extent  of  this  duty,  ib. 
of  the  disturbers  of,  431. 
how  far  war  may  be  continued,  431,  302. 
peace  the  end  of  war,  432. 
general  effects  of  peace,  ib. 
Treaties  of,  432  to  440. 
defined,  432. 
by  whom  concluded,  ib. 
sovereign's  authority  herein,  432,  43?. 
when  limited,  433. 

of  alienations  made  by  a  treaty  of  peace,  t'6. 
to  what  extent  may  be  made,  433,  434. 
when    sovereign    may   dispose    of  what 

concerns  individuals,  435. 
state  bound  to  indemnify  sufferers,  t'6. 
whether  sovereign,  prisoner  of  war,  can 

conclude  treaty  of  peace,  t'6. 
when  he  may  negotiate  it,  Ac.,  ib. 
who  then  to  conclude  it,  t'6. 
duty  of  state  to  procure  release  of  sove- 
reign, 436. 

when  may  be  made  with  an  usurper,  »&. 
allies  included  in,  t'6. 
when  not  binding  on  allies,  438,  437. 
associates,  to  treat  eaeh  by  himself,  437. 
of  mediation,  ib. 
on  what  footing  peace  may  be  concluded, 

t'6. 

general  effect  thereof  438. 
engage  to  preserve  perpetual  peace,  ib. 
of  special  compromises,  t'6. 
amnesty,  what,  439. 
a  perpetual  oblivion  of  the  past,  ib. 
necessarily  implied  ra  everp  treaty  of 
peace,  t'6. 


642 


INDEX. 


PB4CE  (continued). 

of  things  not  mentioned  in  the  treaty, 
439. 

«>f  things  not  included  therein,  ib. 

does  not  extend  to  things  having  no  re- 
lation to  the  war,  ib. 
as  debts  contracted  with  individuals,  ib. 
or  to  movables,  Ac.,  ib. 

former  treaties,  mentioned  and  confirmed 

in  the  new,  are  part  of  it,  440. 
Of  the  execution  of  those  treaties,  440  to  443. 

when  the  obligation  of  the  treaty  com- 
mences, 440. 

publication  of  peace,  ib. 

should  bo  without  delay,  ib. 

when  may  be  postponed,  440,  441. 

time  of  the  execution  thereof,  441. 

lawful  excuse  for  delay,  ib. 

promise   void  when  party  has  hindered 
the  performance  of  it,  ib. 

cessation  of  contributions,  442. 

products  of  the  things  ceded  or  restored, 
ib. 

in  what  condition  to  be  restored,  ib. 

import  of  word  restitution,  ib. 

instances,  442,  443. 
Interpretation  of  treaty  of  peace,  443. 

1.  where    doubtful,   against    the    pre- 

scriber  thereof,  ib. 

2.  names  of  ceded  countries,  ib. 

how  to  be  understood,  ib. 

3.  restoration  not  to  be  understood  of 

those  who  have  voluntarily  given 
themselves  up,  444. 

Of  the  observance  and  breach  thereof,  ib. 
binds  the  nation  and  successors,  ib. 
to  be  faithfully  observed,  ib. 
plea  of  fear  or  force   does  not  dispense 

with  its  observance,  ib. 
breach  of  what,  446. 
1  ways  in  which  it  may  be  broken,  ib. 
may  be  violated  in  three  ways,  446  to  450. 

1.  by  conduct   contrary  to  the  nature 

thereof,  446. 
to   take  up  arms  for  a  fresh  cause, 

no  breach,  ib. 
nor  is  a  subsequent  alliance  with  an 

enemy  a  breach,  447. 
distinction  to  be  made  between  a  new 

war  and  a  breach  of  treaty,  ib. 
JHstiflable    defence    no    breach    of 

treaty,  44S. 
causes    of   rupture    on    account   of 

allies,  449. 

2.  by   conduct   contrary   to    its    par- 

ticular nature,  ib. 
instances  herein,  ib. 

3.  by  violation  of  any  article,  ib. 
violation  of  a  single   article  breaks 

the  whole  treaty,  450. 
no   distinction    between   more  and  less 
important  articles,  449. 


PEACE  (continued). 

of  penalty  annexed  to  the  violation  of  an 

article,  450. 

studied  delays,  their  effect,  ib. 
of  insurmountable  difficulties,  ib. 
when  time  must  be  allowed,  450,  451. 
or  indemnity  given,  451. 
preferable  to  recourse  to  arms,  ib. 
instruction  of  treaty  by  subjects,  ib. 
distinction,  if  not  imputable  to  sovereign, 

ib. 

the  treaty  not  broken  by,  ib. 
of  infraction  by  allies,  ib. 
right  of  offended  party  against  violator 

of  treaty,  452. 
optional  to  declare  treaty  null,  or  allow 

it  to  subsist,  ib. 

PIETY.     See  RELIGION. 

meaning  of,  55. 

its  influence  on  happiness  of  nation,  ib. 

nation  ought  therefore  to  be  pious,  ib. 

should  be  attended  with  knowledge,  ib. 

consequences  of  want  of,  55,  56. 
POISON, 

use  of,  in  warfare  condemned  as  odious, 
360. 

not  to  be  adopted  by  way  of  reprisal,  ib. 

of  poisoning  prisoners,  358,  360,  361. 

use  of  poisoned  weapons  condemned,  361. 

so,  of  poisoning  springs,  ib. 
POLICE.    See  JUSTICE  AND  POLITY. 
POLITICAL  EQUILIBRIUM.    See  WAR. 

what,  312. 

POPE.     See  POPERY. 
POPERY, 

Abuses  of,  particularized,  66. 

1.  power  of  the  popes,  ib. 
extent  thereof,  66,  67. 
whence  it  arises,  67. 

effect  of,  in  a  foreign  court,  ib. 
instances,  65  to  67. 

2.  important    employments     conferred 

by  a  foreign  power,  68. 
disposal  of  ecclesiastical  dignities,  ib. 
practice  hereof  a  violation  of  nation's 

right,  ib. 
nations    submitting   to,    condemned, 

ib. 

3.  powerful   subjects   depending   on   a 

foreign  court,  68,  69. 
abuse  in  this  respect,  69. 

4.  the  celibacy  of  the  priests,  ib. 
for  what  cause  invented,  ib. 
practice  of,  condemned,  69,  70. 
of  convents,  ib. 

marriage  advocated,  70. 

5.  enormous  pretensions  of  the  clergy, 

ib. 

their  pre-eminency,  ib. 
its  prejudice  on  good  order,  ib. 


INDEX. 


643 


POPERY  (continued). 

6.  independence  of,  71. 
immunities,  ib. 

their  attempt  to  escape  from  political 

authority,  t'6. 
claim  their  immunities  from  God,  ib. 

7.  immunities  of  church  possessions, 

72,  73. 

same  immunity  claimed  for  pos- 
sessions of  the  church,  72. 

when  state  may  exempt  them,  ib. 

should  be  first  taken  for  the  use  and 
safety  of  the  state,  73. 

limit  of  exemption,  72. 

8.  excommunication  of  men  in  office, 

73. 

9.  and  of  sovereigns  themselves,  74. 
instances  of  abuse,  ib. 

but  abuses  not  confined  to  popes, 

ib. 
instance,  74,  75,  in  note. 

10.  the  clergy  drawing  every  thing  to 

themselves,  and  disturbing  the 
order  of  justice,  75,  76. 

11.  money  drawn  to  Rome,  76. 

their  rapacity  herein,  ruinous  to 
the  court  of  Rome,  ib. 

12.  laws  and  customs  contrary  to  the 

welfare  of  states,  t'6. 
consequence  of  trusting  same  to  the 

clergy,  t6. 
its  pernicious  effect  on  the  state,  ib. 

POPULAR    GOVERNMENT.       See  GO- 
VERNMENT. 
what,  2. 

empire  kept  by  state  in  its  own  hands,  2. 
also  called  a  democracy,  ib. 

PORTS.     See  SEA. 

to  whom  belonging,  129. 
enemy  pursuing  ship  into  neutral  port 
must  refrain  from  hostilities  there, 
344,  n. 
POSITIVE  LAW, 

what,  Ixiv.,  Ixvi.,  Ixvii.,  and  notes, 
proceeds  from  the  will  of  nations,  66. 
is  of  three  kinds,  Ixvi. 

1.  voluntary,  what,  t'6. 

2.  customary,  what,  t'6. 

3.  conventional,  what,  t'6. 

the  two  latter  called  the  arbitrary  law  of 
nations,  Ixvi. 

POSTLIMINIUM.    See  Jus  POSTLIMINIUH. 

PREROGATIVES  OF  THE  CROWN, 
what,  15. 

with  respect  to  coin,  46.     See  COIN. 
in  matters  of  religion,  62.    See  RELIGION. 
with  regard  to  public  property,  112.     See 

PROPERTY. 
as    to    pardoning    offenders,    83.      See 

PARDON. 


PRESCRIPTION, 

of  usucaption  and  prescription,  187,  and 
note. 

definition  of,  187,  &c. 

is  derived  from  the  law  of  nature,  187. 

what  foundation  required  for  ordinary 
prescription,  189. 

of  immemorial  prescription,  t'6. 

claimant  alleging  reasons  for  his  silence, 
190. 

proprietor  showing  he  does  not  intend  to 
abandon  his  right,  t'6. 

prescription  founded  on  the  actions  of 
the  proprietor,  16. 

usucaption  and  prescription  take  place 
between  nations,  t'6. 

more  difficult  between  nations  to  found 
them  on  a  presumptive  desertion, 
190,  191. 

other  principles  that  enforce  prescription, 
191. 

effects  of  voluntary  law  of  nations  on 
this  subject,  191,  192. 

law  of  treaties  or  customs  herein,  192. 

nations  should  adopt  rules  on  this  sub- 
ject, ib. 

exclusive  right  to,  not  acquired  by  pre- 
scription, 127. 

right  may  be  acquired  by  treaty,  126. 

PRETEXTS, 

what,  304,  306.     See  WAR. 

PRISONERS  OF  WAR.    See  WAR. 
right  of  making,  353. 
are  not  to  be  put  to  death,  348,  354. 
how  to  be  treated,  354. 
may  be  confined  and  fettered,  t'6. 

but  not  to  be  treated  harshly,  t'6. 

unless  guilty  of  crime,  t6. 
are  seldom  ill-treated  by  European  na- 
tions, t'6. 

of  releasing  them  on  parole,  355. 
whether  prisoners  who  cannot  be  fed, 
&c.,  may  be  put  to  death,  t6. 

should  be  dismissed  on  parole,  ib. 
whether  may  be  made  slaves,  356. 

in  what  cases  lawful,  ib. 
exchange  and  ransom  of,  357. 
object  of  detention  of,  t'6. 
time  of  exchange  or  ransom,  ib. 

when  proper,  t'6. 
state  bound  to  procure  release  of,  ib. 

its  duty  to  provide  for  support,  ib. 
formerly  obliged  to  redeem  themselves,  ib. 
of  assassination  and  poisoning  of,  353, 

360,  361. 

practice  of,  condemned,  t'6. 
of  the  jus  postliminium  with  respect  to, 

398. 

in  force  for  prisoners,  397. 
how  rights  of,  subsist,  398. 
may  dispose  of  and  will  property,  t'6 


644 


INDEX. 


PRIZE  COURT, 

how  constituted,  364,  392,  in  notes, 
questions  of  capture  or  prize  determined 

in,  364,  392,  in  notes, 
rules  respecting,  166,  note. 

1.  must  belong  to  belligerent  country 

ti,  344,  note. 

2.  must  have  actually  sat  in  country 

to  which  it  belonged,  ib. 

3.  properly    condemned   must   be,   at 

time  of  condemnation,  in  country 
where  sentence  pronounced,  ib. 

PRIVATEER.    SeeWAK. 

PROPERTY, 

Different  kinds  of,  109. 

is  public,  common,  or  private,  ib. 
Of  public  property,  109,  113. 

what,  109. 

called  by  Romans  res  communes,  ib. 

of  what  it  consists,  ib. 

how  acquired,  110. 

of  the  revenues  of  the  public  pro- 
perty, ib. 

naturally  at  the  sovereign's  disposal, 
ib. 

nation  may  grant  him  the  use  and 
property  of  its  common  posses- 
sions, ib. 

may  allow  him  the  domain,  ib. 

and  reserve  to  itself  the  use  of  them, 
ib. 

of  taxes,  111.     See  TAXES. 

nation  may  reserve  to  itself  the  right 
of  imposing,  ib, 

of  the  sovereign  who  has  this  power,  16. 

his  duties  with  respect  to,  112. 

of  eminent  domain  annexed  to  sove- 
reignty, ib. 

his  right  thereto,  ib. 

may  dispose  thereof,  ib. 

government  of  private  property,  113. 
Of  common  properly,  113,  115. 

what,  109,  110. 

sovereign  may  make  laws  respecting, 
113. 

but  not  abuse  such  power,  ib. 

of  alienation  of  property  of  a  corpo- 
ration, ib. 

corporation  has  a  right  to  do  so,  ib. 

how  that  right  should  be  exercised,  ib. 

whose  consent  requisite  therein,  ib. 

of  the  several  kinds  of  corporate  pro- 
perty, 114. 

use  of  common  property,  ib. 

how  each  member  is  to  enjoy  it,  ib. 

must  not  injure  the  common  use,  ib. 

right  of  anticipation  in  the  use  of  it,  16. 

instances  of  the  exercise  of  this  right, 
ffc 

in  drawing  water  from  a  well,  ib. 

or  felling  tree  in  a  forest,  114. 


PROPERTY  (continued). 

preservation  and  repairs  of  common, 
possessions,  115. 

expenses  hereof,  and  how  raised,  ib. 

duty  and  right  of  sovereign  herein,  ib. 
Of  private  property,  115,  116. 

rights  of  proprietors  of,  115. 

when  sovereign  may  interfere  there- 
'   with,  ib. 

may  subject  it  to  regulations  of  police, 
ib. 

may  compel  sale  of,  in  cases  of  neces- 
sity, 115,  116. 

power  over,  in  other  instances,  ib. 

should  hinder  monopolies,  116. 

of  inheritances  thereto,  ib. 

right  of  persons  to  bequeath  it,  ib. 

when  limited,  ib. 
Of  the  alienation  of  public  property,  ib. 

right  of  nation  herein,  ib. 

duties  of  nation  in  this  respect,  ib. 

in  cases  of  necessity,  ib. 

duties  of  the  prince  as  to,  117. 

cannot  alienate  it,  ib. 

though  nation  may  give  him  a  right 
to  it,  ib. 

but  right  not  to  be  presumed,  ib. 

rules   respecting   alienation   between 
nations,  ib. 

of  treaties  thereon,  ib. 

of  alienation  of  a  part  of  the  state,  1 18. 

should  only  be  in  cases  of  extreme 
necessity,  ib. 

rights  of  dismembered  party,  118,  119. 

not  obliged  to  receive  new  master,  119. 

whether  prince  has  power  to  dismem- 
ber the  state,  ib. 

PROTECTION.    See  NATION. 

of  protection  sought  by  a  nation,  93. 
simple  treaty  of,  what,  93,  94. 
how  annulled,  95. 

PUBLIC  GRANARIES, 

propriety  of  establishing,  36. 

PUBLIC  WAYS, 

utility  of  highways,  canals,  &c.,  43,  and 

note. 

duty  of  government  in  respect  of,  43. 
should  render  them  safe  and  commo- 
dious, ib. 

its  rights  in  this  respect,  16. 
nation  should  contribute  to  expenses  of, 

ib. 

may  compel  people  to  labour  at,  44. 
or  contribute  to  the  expense,  44,  and 

see  note. 

foundation  of  the  rights  of  toll,  ib. 
abuses  of,  ib.,  and  notes, 
how  far  tolerated  by  arbitrary  law  of 

nations,  ib. 
now  generally  settled  by  treaties,  ib. 


INDEX. 


645 


PUNISHMENT.     See  JUSTICE. 
Of  transgressors,  81. 
foundation  of  right  of  punishing,  \b. 
founded  on  right  of  personal  safety,  ib. 
to  whom  it  belongs,  ib. 
of  the  laws,  and  their  execution,  ib. 
of  the  criminal  laws,  ib. 
necessity  of  these  laws,  ib. 
their  choice,  and  establishment,  81,  82. 
Of  the  degree  of  punishment,  82. 
not  to  be  beyond  what  safety  of  state 

requires,  ib. 

what  to  be  considered  in  proportion- 
ing of  it,  ib. 

as  nature  of  crime  itself,  ib. 
opportunities  of  committing  it,  ib. 
degree  of  injury  done  to  the  public,  ib. 
consequences  of  unnecessary  severity,  ib. 
importance  of  enforcing  the  laws,  ib. 

RANSOM, 

of  prisoners,  357. 

right  to  detain  till  ransomed,  ib. 

time  of  ransom,  ib. 

generally  settled  by  treaty,  ib. 

right  of  sovereign  to  enforce  payment  of 
ransom,  414. 

conventions  relating  to  the  ransom,  419. 

right  to  demand,  may  be  transferred,  16. 

should  not  be  in  an  unlimited  manner,  ib. 

what  may  annul  the  convention  made 
for  the  rate  of  the  ransom,  ib. 

ransom  proportionate  to  rank  of  officer, 
ib. 

concealment  of  rank,  compact  may  be 
annulled,  ib. 

prisoner  dying  before  payment  of  ran- 
som, ib. 

ransom  when,  or  not  due,  419,  420. 

instances,  ib. 

prisoner  released  on  condition  of  pro- 
curing the  release  of  another,  420. 

when  bound  to  return,  ib. 

where  prisoner  is  retaken  before  pay- 
ment of  ransom,  ib. 

his  liability  to  pay  second  ransom,  tA. 

otherwise,  if  rescued  before  he  has  ob- 
tained his  liberty,  421. 

of  ships,  &c.,  414,  notes. 

prohibited  by  English  laws,  414,  note. 

RANSOM  BILLS, 

doctrine  of,  recognised  as  a  part  of  the 
law  of  nations,  414,  note. 

REBEL.     See  CIVIL  LAW. 
who  are  rebels,  422,  424. 
sovereign's  right  against,  422. 
obligatory  on  him  to  perform  promises 
to,  423. 

REGENT, 

when  to  be  appointed,  23. 
his  authority,  27. 


RELIGION.    See  PIETY. 

Of  religion  external  and  internal,  56. 
denned,  ib. 

as  an  affair  of  conscience,  ib. 
or  an  affair  of  state,  ib. 
Rights  of  individuals  as  to,  ib. 

should  acquire  knowledge  of  God  and 

his  laws,  ib. 

love  and  respect  due  to  God,  ib. 
liberty  of  conscience,  ib. 
right  to  exercise  choice  in  matters  of  re- 
ligion, 56,  60. 

importance  of  this  right,  56,  61. 
is  natural  and  inviolable,  ib. 
should  be  limited  within  just  bounds, 

56. 

Public  establishment  of  religion,  ib. 
is  a  matter  of  state,  57. 
and  under  jurisdiction  of  political  au- 
thority, ib. 

of  a  nation  how  established,  ib. 
When  as  yet  no  established  religion,  ib. 
choice  of,  how  made,  ib. 
duty  of  nation  herein,  ib. 
majority  to  have  choice  of,  ib. 
but  minority  to  have  liberty  to  follow 

their  own  religion,  ib. 
or  separate  from  society  of  majority,  ib. 
when  may  sell  their  property,  and  re- 
tire, ib.,  106. 

When  there  is  an  established  religion,  58. 
nation  bound  to  protect  and  support,  ib. 
when  may  make  changes  therein,  ib. 
of  the  danger  of  innovations,  ib. 
who  to  determine  on  changes,  ib. 
in  case  of  a  new  religion  spreading,  ib. 
Duties  and  rights  of  sovereign  with  respect  to 

religion,  ib. 

When  no  religion  established,  ib. 
should    establish   one    by    mild    and 

suitable  means,  ib. 
should  not  use  authority  or  restraint, 

ib. 
should   prevent  introduction   of  one 

pernicious  to  morality,  &c.,  ib. 
When  there  is  an  established  religion,  59. 
duty  of  sovereign  to  watch  over  it,  ib. 
should  restrain  attempts  to  disturb  it, 

ib. 

his  right  to  interfere  in  such  case,  ib. 
how  right  to  be  exercised,  ib. 
objects  of  his  care,  and  the  means  he 

ought  to  employ,  60. 
interior  as  well  as  external  religion 

should  be,  ib. 
Of  toleration,  ib. 

of  all  tenets  advisable,  ib. 
unless  dangerous  to  morality,  16. 
Of  prince's   duty,  when  nation   resolved  to 

change  its  religion,  ib. 
cannot  constrain  them  therein,  61. 
but  may  exercise  his  own  religion,  ib. 


646 


INDEX. 


RELIGION  (continued). 

difference  of,  does  not  deprive  him  of 
his  crown,  61. 

duties  and  rights  of  the  sovereign  recon- 
ciled with  those  of  the  subjects, 
ib. 

Right  of  sovereign  to  have  inspection  over 
matters  of  religion,  62. 

should  have  inspection  of  all  relating 
thereto,  ib. 

also  over  those  who  teach  it,  ib. 

its  exercise  advantageous  to  the  state, 
ib. 

a  prerogative  of  majesty,  ib. 

right  of  nation  to  delegate  this  power, 

*" 

sovereign's   duty   to   prevent   abuse  of 

received  religion,  63.         i 
his  authority  over  ministers  of  religion, 

ib. 

this  authority  described,  63,  64. 
cannot  compel  ecclesiastic  to  preach 

against  his  conscience,  64. 
duty  of  ecclesiastic  herein,  ib. 
rule  to  be  observed  with  respect  to  eccle- 
siastics, ib. 

should  enjoy  a  large  portion  of  es- 
teem, ib. 

should  have  no  authority,  ib. 
or  claim  independence,  ib. 
should  be  subject  to  the  public  powers, 

ib. 
and  amenable  to  sovereign  for  their 

conduct,  ib. 

duty  of  sovereign  towards,  16. 
should  cause  them  to  be  respected, 

ib. 

and  invest  them  with  authority  suffi- 
cient to  discharge  their  functions, 
ib. 

but  should  prevent  abuse  of  that  au- 
thority, ib. 
clergy  when  formidable  as  a  separate 

body,  16. 

Recapitulation  of  reasons  establishing  sove- 
reign's rights  in  matters  of  religion, 
64,  65. 

authorities  and  examples,  65. 
Pernicious  consequences  of  denying  sovereign 

to  be  head  of  the  church,  ib. 
abases  particularized,  ib. 

1.  Power    of   the   popes,    66.     See  POPE- 

RY. 

extent  thereof,  66,  67. 
pernicious  effect  of,  in  a  foreign   court, 

67. 
instances,  ib. 

2.  Of  important  employments  conferred  by 

a  foreign  power,  '68. 
disposal  of  dignities,  ib. 
a  violation  of  a  nation's  right,  ib. 
submission  thereto  condemned,  ib. 


RELIGION  (continued) 

3.  Powerful  subjects  depending  on  fo- 

reign court,  68,  69. 
abuse  in  this  respect,  69.^ 

4.  The  celibacy  of  their  priests,  ib. 
for  what  cause  invented,  ib. 
practice  of,  condemned,  70. 

of  convents,  69,  70. 
marriage  advocated,  70. 

5.  Enormous  pretensions  of  the  clergy, 

ib. 

of  their  assumed  pre-eminence,  ib. 
its  prejudice  on  good  order,  ib. 

6.  Independence  of,  71. 
immunities  of,  t'6. 

attempt  of,  to   escape   from   political 

authority,  ib. 
claim  their  immunities  from  God,  ib. 

7.  Immunities    of   church    possessions, 

72,  73. 

when  state  may  exempt  them,  72. 
limit  of  exemption,  t'6. 

8.  Excommunication  of  men  in  office, 

73. 

9.  And  of  sovereigns  themselves,  74. 
instances  of  this  abuse,  74, 75,  in  note. 

10.  The  clergy  drawing  every  thing  to 

themselves,   and   disturbing   the 
order  of  justice,  75,  76 

11.  Money  drawn  to  Rome,  76 

12.  Laws  and  customs   contrary  to  the 

welfare  ot  states,  Hi. 
consequences  of  trusting  same  to  the 

clergy,  ib. 
pernicious  effects  thereof  on  the  state, 

ib. 
Right  of  nations   to  interfere  with  religion 

of  each  other,  157,  158. 
no   nation  can  be   restrained  with  re- 
spect to,  158. 

with  respect  to  missionaries,  ib, 
what  a  sovereign  may  do  in  favour  of 
those  professing  his  religion  in  an- 
other country,  159. 

RENUNCIATION, 
what,  25. 

validity  and  effect  of,  25,  26. 
REPRISALS, 
what,  283. 

their  nature,  283,  284. 
accomplishment  of,  284. 
what  required  to  render    them  lawful, 

ib. 
must  be  on  just  grounds  before  allowed, 

ib. 
upon  what    effects    reprisals    made,  t'6. 

and  note. 

general  reprisals,  what,  285,  note, 
state  should  compensate  those  who  puffer 

by,  285. 
sovereign  alone  can  order  reprisals,  ib. 


INDEX. 


647 


REPRISALS  (continued). 

termed  by  the  French — letters  of  marque, 

285. 
against  a  nation  for  the  actions  of  its 

subjects,  ib. 

but  not  in  favour  of  foreigners,  16. 
those  who  have  given  cause  for,  ought 

to  indemnify  the  sufferers,  286. 
what  deemed  a  refusal  to  do  justice,  286, 

287. 

arrest  of  subjects  by  way  of,  287,  481. 
instances  of,  ib. 

our  right  against  those  who  oppose  re- 
prisals, 287. 
just  reprisals  do  not  afford  a  just  cause 

of  war,  288. 
how  we  ought  to  confine  ourselves  to 

reprisals,  or  proceed  to  extremities, 

288,  289. 

wnen  latter  course  preferable,  289. 
of  reprisals  during  war,  348. 
whether  may  be  made  on  ambassadors, 

Ac.,  481,  482. 
use  of  poison  not  to  be  adopted  by  way 

of  reprisal,  360. 

REPUBLIC.     See  GOVERNMENT. 
what,  2. 

empire  intrusted  by  nation  to  a  certain 
number  of  citizens,  2. 

RESIDENTS, 

who,  460. 
RETALIATION  OF  INJURIES,  282,  283, 

317. 

RETORTION,  283. 
REVENUE.     See  PROPERTY. 

of  the  public  revenues,  110. 

at  whose  disposal,  ib. 

application  of,  ib. 

RIGHTS.     See  OBLIGATIONS  AND  RIGHTS. 
RIVERS,  STREAMS,  AND  LAKES, 

right  of  nation  thereto,  120. 

of  river  separating  two  territories,  76. 

rules  respecting,  ib. 

1.  where    nation    takes    possession    of 

country  bounded  by,  t'6. 
priority  of  possession  gives  right,  ib. 

2.  and    appropriates   to    itself  the    use 

thereof,  76. 

3.  where  possession  doubtful,  t'6. 

4.  where    possession    long    and   undis- 

puted, 120,  and  note. 

5.  where  settled  by  treaty,  120. 

of  the  bed  of  a  river  dried  up,  or  taking 

another  course,  121. 

the  bed  of,  belongs  to  owner  of  river,  t'6. 
of  the  right  of  alluvion,  t"6. 
distinction  between,  and  avulsion,  t'6. 
whether  it  produces  any  change  in  the 

right  to  the  river,  t'6. 
where  bed  of  changed,  122. 


RIVERS,  &c.  (continued). 

right  of  soil  of  abandoned  course,  in 

whom,  122. 
of  works  tending  to  turn  the  current  of, 

ib. 

when,  or  not  lawful,  ib. 
or  in  prejudice  of  right  of  others,  ib. 
rules  in  relation  to  interfering  rights,  ib. 
where  right  of  fishery  exists,  ib. 
in  cases  of  navigation,  ib. 
of  lakes,  123,  124.     See  LAKES. 
proprietors  of,  who,  123. 
of  the  increase  of  lakes,  ib. 
of  land  formed  on  banks  of  lakes,  125. 
where  bed  of  lake  dried  up,  ib. 
jurisdiction  over  lakes  and  rivers,  ib. 

SAFE  CONDUCT, 
what,  416. 

distinction  between,  and  passport,  ib. 
right  of  sovereign  to  grant,  ib. 
when  may  delegate  right,  ib. 
is  not  transferable,  ib. 
of  safe    conduct    granted    for    certain 

effects,  ib. 
when  those  effects  may  be  removed  by 

others,  ib. 

extent  of  the  promised  security,  ib. 
duty  of  party  granting  it,  417. 
of  the  right  derived  thereby,  ib. 
whether  includes  baggage  and  domestics, 

ib. 

practice  to  specify  particulars,  ib. 
granted  to  father  does  not  include  his 

family,  ib. 

when  to  party  and  his  retinue,  ib. 
term  of  safe  conduct,  418. 
of  person  forcibly  detained  beyond  the 

term,  ib. 
of  respite  in  case  of  forcible  detainer  or 

sickness,  ib. 
does  not  expire  at  death  of  him  who 

gave  it,  ib. 

how  may  ba  revoked,  ib. 
time  allowed  in  case  of  revocation,  ib. 
SAFE-GUARD.     See  ENEMY. 

what,  and  when  granted,  369. 
SEA, 

its  use,  125. 

dominion  over,  125,  in  note. 

whether  it  can  be  possessed,  125. 

no  one  can  appropriate  to  himself  the 

use  of,  ib. 
attempt  to  exclude  another  does  it  an 

injury,  126. 

attempt  an  injury  to  all  nations,  t'6. 
exclusive   right    may    be    acquired    by 

treaties,  ib. 

but  not  by  prescription,  or  long  usage,  127. 
unless  by  virtue  of  a  tacit  agreement,  t'6. 
but  sea  near  the  coasts  may  become  a 
property,  t'6. 


648  INDEX. 


8EA  (continued). 

reason  for  appropriating  the  sea  near  the 
coast,  128. 

how  far  this  possession  may  extend, 
128,  129. 

of  shores  and  ports,  129. 

of  bays  and  straits,  129,  130. 

of  straits  in  particular,  130. 

of  tax  in  right  of  passage,  ib. 

of  the  right  to  wrecks,  ib. 

when  allowed,  ib. 

to  whom  belonging,  ib. 

of  a  sea  included  within  the  territories 
of  a  nation,  130,  131. 

of  the  jurisdiction  over  the  sea,  131. 

empire  and  domain  over,  not  insepara- 
ble, ib. 

of  children  born  at,  102.  See  COUNTRY. 
SEARCH.  See  NEUTRALITY. 

right  of,  in  neutral  ships,  338,  339. 

consequences  of  refusal,  ib. 

usually  settled  by  treaty,  ib. 

SEPARATION, 

of  a  nation  from  the  state  of  which  it  is 

a  member,  96. 
when  allowed,  96,  97. 
when  conquered  or  abandoned,  97. 
mere  failure  of  protection  not  sufficient, 

96,  97. 

SETTLEMENT.    Sec  COUNTRY. 

what,  103. 

when  may  be  changed,  ib. 

distinction  between,  and  habitation,  ib. 

of  natural  or  original  settlement,  ib. 

acquired  settlement,  what,  ib. 
SHORE,  129.     Sec  SEA. 

SLAVERY, 

of  the  right  to  condemn  prisoners  to, 
356,  357.  See  PRISONER. 

SOCIETY.     See  LAW  OF  NATIONS. 

of  the  establishment  of  natural  society, 

lix. 

its  necessity,  ib. 

its  duties  and  obligations,  Ix.  IxL 
its  object,  Ixi. 
general  laws  deduced  therefrom,  Ir.  Ixi. 

IxiL 
benefit  of  others,  without  prejudice  to 

ourselves,  Ixi.  Ixii. 
the  liberty  of  nations,  Ixii. 
effect  of  this  liberty,  ib. 
the  right  of  judging  for  herself,  Ixii.  346. 
importance  of  this  law,  Ixiv. 
violation  of,  a  ground  of  war,  ib. 
extent  of  right,  ib. 
must  not  affect  the  liberty  of  nations,  ib. 

SOLDIERS.  See  WAR. 
right  of  raising,  293. 
«f  enlistment  of,  294. 


SOLDIERS  (continued) 

their  pay  and  quarters,  296. 
of  mercenary  soldiers,  297. 

SOVEREIGN, 

obligations  and  rights  of,  12. 

who  is  a  sovereign,  1,  12. 

established  for  the  advantage  of  society, 
13. 

representative  character  of,  14. 

origin  of,  16. 

is  intrusted  with  the  obligations  of  the 
nation,  ib. 

and  invested  with  its  rights,  14. 

rights  of  in  this  respect,  14,  15. 

ought  to  know  the  nation,  15. 

extent  of  his  power,  i&. 

his  prerogatives,  ib. 

to  respect  and  support  the  laws  funda- 
mental, ib. 

may  change  those  not  fundamental,  ib. 

ought  to  maintain  the  existing  laws,  16. 

in  what  sense  subject  to  the  laws,  ib. 

person  of,  sacred  and  inviolable,  17. 

nation  may  curb  a  tyrant,  17,  18. 

may  withdraw  itself  from  his  obedience, 
ib. 

arbitration  between,  and  his  subjects,  20. 

obedience  which  subjects  owe  to,  21. 

when  may  resist  him,  ib. 

appointment  of  ministers  by,  23. 

duty  of,  in  establishing  glory  of  the  na- 
tion,  91. 

of  pardoning  offenders.     See  PARDON. 

right  of,  to  grant  privilege  of  safe  con- 
duct, 416. 

duty  of  state  to  procure  release  of,  when 
a  prisoner,  436. 

right  of,  over  property  of  subject.  See 
PROPERTY. 

SOVEREIGN  STATE, 
what,  2. 
is  such,  though  bound  by  an  unequal 

alliance,  ib. 

or  by  treaty  of  protection,  ib. 
or  to  pay  tribute,  ib. 
or  to  do  homage,  ib. 
two   states  subject  to  the  same  prince, 

may  be,  3. 

so  of  states  forming  a  federal  republic,  ib. 
when  it  ceases  to  be  such,  4. 
when  under  dominion  of  another,  ib. 

SOVEREIGNTY.       See      al»o     SOVEREIGN 

STATE. 
what,  3. 

indivisibility  of,  21. 
is  inalienable,  31. 

SPY, 

of  the  employment  of,  375,  376,  358. 

STATE.     See   NATION,   LAW    OP   NATION, 
SOVEREIGNTY. 


INDEX. 


649 


STATE  (continued). 
Its  constitution,  8. 

duties  and  rights  of  the  nation  in  re- 
spect to,  ib. 

of  the  public  authority  of,  ib. 

nation  should  choose  the  best  constitu- 
tion, 9. 

of  the  political,  fundamental,  and  civil 
laws  of,  ib. 

of  the  support  of  the  constitution,  and 
obedience  to  the  laws,  9,  10. 

rights  of  nation  with  respect  to  its  con- 
stitution and  government,  10. 

may  reform  its  government,  ib. 

and  change  its  constitution,  ib. 

of  the  legislative  power  of,  11. 

right  of,  to  change  the  constitution,  ib. 

of  the  caution  necessary  herein,  12. 

is  the  judge  of  all  disputes  relating  to 
the  government,  ib. 

no  foreign  power  has  a  right  to  interfere, 
ib. 

several  kinds  of  states,  23. 
STRAIT.     See  SEA. 

of  refusing  passage  through,  130. 

of  levying  tax  on  vessels  passing  through, 

ib. 

STREAM,  120,  121.    See  RIVEE,  STREAMS, 
AND  LAKES. 

SUBMISSION.     See  NATION. 
of  one  nation  to  another,  94. 
different  kinds  of,  ib. 
right  of  citizens  on,  ib. 
how  treaty  of,  annulled,  95. 
distinction   between,   and   incorpora- 
tion, 96. 
SUBSIDY.     See  ENEMY. 

what,  324. 
SUCCESSIVE        OR      HEREDITARY 

STATE, 
what,  24. 
origin  of,  ib. 

when  may  be  changed,  25. 
ought  to  be  kept,  26. 
of  renunciation,  25. 
when,  or  not  binding,  ib. 
of  regents,  27. 

indivisibility  of  sovereigns,  ib. 
who  to  decide  disputes  respecting  suc- 
cession, ib. 

ought  not  to  depend  on  judgment  of  a 
foreign  power,  29. 

SUPPLICANT.    See  COUNTRY. 

who  are,  107. 

such  as  implore  protection  of  a  sove- 
reign against  nation  they  have 
quitted,  ib. 

SURETY.     "ie  GUARANTY. 

for  observance  of  treaties,  237.  See 
TREATY. 

82 


TAXES, 

imposition  and  regulation  of,  111. 

each  citizen  to  contribute  according  to 
his  ability,  ib. 

nature  of  the  obligation,  ib. 

nation  may  reserve  to  itself  the  right  of 
imposing  them,  ib. 

of  money  bills,  111,  in  note. 

of  the  sovereign  who  has  this  power,  ib. 

duties  of  sovereign  with  respect  to,  ib. 

application  of,  112. 
TERRITORY.    See  COUNTRY. 
TESTAMENTS, 

validity  of,  how  decided,  167. 

how  construed  in  England,  167,  note. 

prisoner  of  war  may  make,  398. 
TOLERATION.  See  RELIGION  AND  PIETY. 

when  universal  toleration  advisable,  60. 

is  so,  unless  tenets  dangerous  to  mo- 
rality, ib. 
TOLL.     See  PUBLIC  WAYS. 

foundation  of  right  to,  44,  115. 

nature  and  object  of  imposition  of,  44. 

on  whom  imposed,  44,  and  note. 
TRADE,  37  to  43.  See  COMMERCE. 
TREATIES, 

Of  alliance  and  other  public  treaties,  192. 

nature  of  treaties,  192,  and  note. 

of  pactions,   agreements,   and  conven- 
tions, 192. 

by  whom  treaties  are  to  be  made,  ib. 

state  under  protection  may  make,  193. 

limitation  of  right,  ib. 

of  treaties   concluded   by   proxies   and 
plenipotentiaries,  ib. 

by  whom  ratified,  ib. 

validity  of  treaties,  194. 

injury  does  not  render  them  void,  ib. 

duty  of  nations  herein,  ib. 

if  injurious  to  state,  a  nullity,  ib. 

so,  if  made  for  unjust  or  dishonest  pur- 
poses, 195. 

contraction  of,  with  those  who  do  not 
profess  the  true  religion,  ib. 

obligation  of  observing  treaties,  196. 

necessity  of,  acknowledged  by  all  na- 
tions, ib. 

glory  to  nation  resulting  therefrom,  ib. 

instances,  196. 

violation  of,  an  act  of  injustice,  ib. 

cannot  be  made  contrary  to  those  pre- 
viously existing,  ib. 

how  concluded  with  several  nations  with 
same  view,  197. 

the  more  ancient  ally  entitled  to  pre- 
ference, ib. 

no  assistance  in  an  unjust  war,  ib. 
General  division  of  the  subject,  198. 

1.  those  relating  to  things  already  due 
by  the  law  of  nature,  ib. 


650 


INDEX. 


TREATIES  (continued). 

2.  those  relating  to  further  engagements, 
189. 

the  former  described,  ib. 

collision  of  these  treaties  with  duty 
we  owe  ourselves,  ib. 

treaties  by  which  we  barely  promise 
to  do  no  injury,  ib. 

utility  thereof,  ib. 

treaties    concerning    things  not  na- 
turally due,  ib. 

these  treaties  described,  ib. 

are  equal  or  unequal,  198,  199. 

of  equal  treaties,  199. 

obligation  of  preserving   equality  in 
treaties,  199. 

difference  between  equal  and  unequal 
treaties,  200. 

of  unequal  treaties  and  alliances,  ib. 

are  divided  into  two  classes,  ib. 

1.  where    inequality    on    side    of 

stronger  power,  ib. 

2.  where  on  side  of  inferior,  ib. 
of  unequal  alliances,  201. 

either  impair  the  sovereignty,  or  they 

do  not,  16. 

how  alliance  with  diminution  of  sove- 
reignty   may    annul    preceding 

treaties.  202,  203. 
should  be  avoided  as  much  as  possible, 

203. 
mutual  duty  of  nations  with  respect 

to  unequal  alliances,  ib. 
of  those  where  inequality  on  the  side 

of  the  more  powerful  party,  203, 

204. 
how  inequality  may  be  conformable 

to  the  law  of  nature,  204. 
when  imposed  by  way  of  punishment, 

205. 

of  personal  and  real  treaties,  ib. 
personal  alliance,  what,  ib. 
expires  with  him  who  makes  it,  ib. 
real  alliance,  what,  ib. 
always  attaches  to  the  state,  ib. 
unless  limited,  ib. 
distinctions  between,  to  be  observed, 

ib. 

general  rules  respecting,  ib. 
naming  contracting  parties  in,  does 

not  make  it  personal,  ib. 
alliance  by  a  republic  is  real,  ib. 
subsists,  though  form  of  government 

changed,  206. 
of  treaties  concluded  by  kings  or  other 

monarchs,  ib, 
of  perpetual  treaties,  ib. 
of  those  for  a  certain  time,  ib. 
of  treaties  for  king  and  his  successors, 

ib. 
treaties  for  the  good  of  the  kingdom, 

207. 


TREATIES  (continued). 

presumption,  how  to  be  founded  in 

doubtful  cases,  207. 
instances  in  illustration,  207,  208. 
obligations  and  rights  resulting  from 
a  real   treaty  pass  to  the  suc- 
cessor, 208. 
hut  -general  custom  for  successor  to 

renew  them,  ib. 
of  treaties  accomplished  once  for  all 

and  perfected,  208,  209. 
of  those  accomplished  in  part,  209,210. 
personal   alliance   expires   if  one  of 

parties  ceases  to  reign,  211. 
of  those  in  their  own  nature  personal, 

211. 
where  concluded  for  defence  of  king 

and  royal  family,  ib. 
when  binding  where  king  deprived  of 

his  crown,  ib. 
distinction  when  dethroned  by  rebels, 

ib. 

and  lawfully  dethroned,  ib. 
instances    of   Louis    4th    and    king 

William,  212. 
obligation  of  a  real  alliance  where  the 

king  is  dethroned,  ib. 

Of  the  dissolution  and  renewal  of  treaties,  ib. 
expiration  of  alliances  made  for  a  limited 

time,  213. 

of  the  renewal  of  treaties,  ib. 
of  the  tacit  renewal  of,  213,  214. 
how  dissolved  when  violated  by  one  of 

contracting  parties,  214. 
violation  of  one  treaty  does  not  cancel 

another,  ib. 
when  violation  of  part  cancels  the  whole, 

215. 
is  void  by  the  destruction  of  one  of  the 

contracting  parties,  216. 
but  not  by  state  placing  itself  under  pro- 
tection of  another,  ib. 
of  treaties  dissolved  by  mutual  consent, 

217. 
Of  public  conventions  in  nature  of,  218.     Sec 

CONVENTION. 

when  made  by  sovereigns,  ib. 
of  those  by  subordinate  powers,  ib. 
of  treaties  concluded  by  public  person 

not  having  sufficient  power,  219. 
of  the  agreement  called  Sponsio,  ib. 
state  not  bound  thereby,  220. 
effect  of,  on  promiser,  ib. 
sovereign,  how  far  bound  by,  223. 
Of  the  faith  of  treaties,  229. 
what  is  sacred  among  nations,  ib. 
treaties  are  held  sacred  between  nations, 

ib. 
faith  of  treaties  is  sacred,  ib, 

and  he  who  violates  them  violates  the 

law  of  nations,  ib. 
right  of  nations  against  violator,  230. 


INDEX. 


651 


TREATIES  (continued). 

violation  of,  by  the  popes,  230. 

this  abuse  authorized  by  princes,  231.     • 

use  of  an  oath  in  treaties,  232. 

does  not  constitute  the  obligation,  t'6. 

or  produce  new  obligations,  ib. 

or  change  the  nature  of  them,  ib. 

it  gives  no  pre-eminence  to  one  treaty 

above  another,  ib. 
cannot  give  force  to  a  treaty  invalid, 

233. 

of  asseverations,  232. 
violation  of,  disgraceful,  ib. 
faith  of  treaties  does  not  depend  on  the 

difference  of  religion,  233. 
precautions  to  be  observed  in  wording 

of,  233. 

of  subterfuges  in  treaties,  234. 
an  evidently  false  interpretation  incon- 
sistent with  faith  of  treaties,  ib. 
faith  tacitly  pledged,  ib. 
Of  securities  given  for  observance  of,  235. 
guaranty,  what,  ib. 
gives  the  guarantee  no  right  to  interfere, 

ib. 
nature   of  the    obligation    it    imposes, 

236. 
cannot  impair  the  rights  of  a  third  party, 

ib. 

duration  of  the  guaranty,  ib. 
of  treaties  with  surety,  237. 
of  pawns,  securities,  and  mortgages, 

ib. 
right  of  nation  over  what  she  holds  as  a 

pledge,  237,  238. 
how  obliged  to  restore  it,  238. 
how  she  may  appropriate  it,  ib. 
of  hostages,    238,    239.       See    HOST- 
AGE. 

Of  the  interpretation  of  treaties,  244. 
necessity  of  establishing  rules  of,  ib. 
general   observations   herein,  244,  and 

notes, 
maxims  respecting,  ib. 

1st,  not  allowable  to  interpret  what 
has  no  need  of  interpretation, 
ib. 

2d,  if  he  who  could  and  ought  to 
have  explained  himself,  and  has 
not  done  it,  it  is  to  his  own 
detriment,  245. 

3d,  neither  of  contracting  parties  to 
interpret  according  to  his  own 
fancy,  ib. 

4th,  what     is     sufficiently     declared 
is   to   be    taken   for    true,   245, 
246. 
6th,  interpretation  ought  to  be  made 

according  to  certain  rules,  246. 
faith  of  treaties  lays  an  obligation  to 

follow  these  rules,  247. 
general  rule  of  interpretation,  ib. 


TREATIES  (continued). 

should  be  conformable  to  common  usage, 

248. 
how  ancient  treaties  to  be  interpreted, 

ib. 

of  quibbles  on  words,  249. 
rule  for  avoiding  of,  ib. 
mental  reservations  not  allowed,  16. 
technical  terms,  how  interpreted,  250. 
of  terms  whose  signification  admits  of 

degrees,  ib. 

of  figurative  expressions,  ib. 
of  equivocal   expressions,  251. 
rule  for  latter  cases,  ib. 
not  necessary  to  give  a  term  the  same 

sense  everywhere  in  the  same  deed, 

252. 

absurd    interpretations    should    be    re- 
jected, ib. 

absurdity  described,  and  instances,  ib. 
interpretation  rendering  treaty  void  not 

to  be  admitted,  253. 
obscure    expressions,   how   interpreted, 

254. 
interpretation  founded  on  the  connection 

of  the  discourse,  ib. 
or  drawn  from  the  connection,  &c.  of 

the  things  themselves,  255. 
to  be  founded  on  the  reason  of  the  deed, 

256. 

how,  where  many   reasons    have  con- 
curred to  determine  the  will,  257. 
what  constitutes  a  sufficient  reason  for 

an  act  of  the  will,  ib. 
extensive  interpretation  founded  on  the 

reason  of  the  act,  ib. 
of  frauds  tending   to   elude   laws   and 

promises,  258. 

of  restrictive  interpretations,  259. 
use  of,  to  avoid  falling  into  absurdities, 

ib. 

or  into  what  is  unlawful,  ib. 
or  into  what  is  too  severe  and  burthen- 
some,  260. 
how  it  ought  to  restrict  the  signification 

agreeably  to  the  subject,  ib. 
when  change  happening  in  the  state  of 

things  forms  an  exception,  261. 
interpretation  of,  in   unforeseen   cases, 

262. 
reasons  arising  from  the  possibility  and 

not  the  existence  of  the  thing,  t'6. 
where   expressions   capable   of  an   ex- 
tensive and  a  limited  sense,  263. 
of  things  favourable  and  things  odious, 

ib. 
favourable,  when  tending  to  the  common 

advantage,  264. 

odious,  when  to  the  contrary,  ib. 
so,  of  things  useful  to  human  society, 

265. 
whatever  contains  a  penalty  is  odious,  ib. 


652 


INDEX. 


TREATIES  (continued). 

so,   whatever    renders   a   deed   void 

odious,  265. 
all  tending  to  change  the  present  stat 

of  things  is  favourable,  ib. 
the  contrary  is  odious,  ib. 
of  things  of  a  mixed  nature,  266. 
interpretation  of  favourable  things,  ib. 
rules  respecting,  ib. 

1.  utmost  latitude  to  be  given  to  term 

used  according  to  common  usage 
ib. 

2.  terms  of  art  to  receive  the  fulles 

interpretation,  267. 

3.  but  not  in  an  improper  signification 

unless  from  necessity,  267. 

4.  signification  to  be  restricted,  where 

leading  to  absurdity,  ib. 
6.  to  be  restricted  where  equity  or 
great  common  advantage  requires 
it,  ib. 

interpretation  of  things  odious,  ib. 
should  be  limited,  267,  268. 
examples,  268,  269. 
how  deeds  of  liberality  should  be  inter 

preted,  270. 
where  a  collision  of  laws  and  treaties 

ib. 

General  rules   respecting   interpretation   of, 
•    ib. 

1.  where  bare  permission    incompatible 

with  prescription — latter  preferred, 
271. 

2.  treaty  permitting,  to  give  way  to  that 

forbidding,  ib. 

3.  so,  that  which  ordains,  to  give  way  to 

that  which  forbids,  ib. 

4.  where  collision  between  two  affirma- 

tive treaties,  latter  to  be  preferred. 
ib. 
when  otherwise,  16. 

5.  of  two  laws  or  conventions,  the  less 

general  preferred,  272. 

6.  treaty  not  admitting  of  delay,  to  be 

preferred    to    that   to   be   done   at 
another  time,  273. 

7.  of  two  competing  duties,  the   most 

important,  &c.,  preferred,  ib. 

8.  of  two  promises,  the  party  promised 

to  elect,  274. 

but  in  case  of  doubt,  promiser  to 
perform  that  in  which  most  strongly 
bound,  Hi. 

9.  treaty    confirmed    on    oath    to    be 

preferred    to    one    not   sworn    to, 
ib. 

10.  treaty  enjoined  under  a  penalty,  to  be 
preferred  to  that  not  enforced  by 
one,  ib. 

no,  of  that  enjoined  under  a  greater 
penalty  to  that  enforced  by  a  lesser, 


TREATIES  OF  PEACE,  432.    See  PEAC*. 
TRIBUTARY  STATE.     See  STATE. 

what,  3. 

is  a  sovereign  state,  3. 
TROOPS, 

right  of  levying,  294. 

enlistment  of,  294,  298. 
TRUCE.    V&eWAR. 

what,  404. 

does  not  terminate  the  war,  ib. 

is  partial  or  general,  ib. 

general  truce  for  many  years,  ib. 

how  concluded,  ib. 

sovereign's  faith  engaged  in,  406. 

when  truce  begins  to  be  obligatory,  ib. 

publication  of,  ib. 

subjects  contravening  the  truce,  16. 

violation  of,  407. 

stipulation  of  penalty  against  infractor 
of,  ib. 

time  of  the  truce,  ib. 

effects  of  a  truce,  408. 

what  or  not  allowed  during  continuance 
of,  t6. 

rules  respecting,  408,  409. 

1.  each  party  may  do  at  home  what 

they  have  a  right  to  do  in  time 
of  peace,  409. 

2.  not  to  take  advantage  of  the  truce 

in  doing  what  hostilities  would 
have  prevented,  ib. 

as  continuing  the  works  of  a  siege, 
16. 

or  repairing  breaches,  &c.,  ib. 

or  introducing  succours,  410. 

distinctions  herein,  ib. 

as  army  retreating  during  a  sus- 
pension of  hostilities,  ib. 

3.  nothing  to  be    attempted  in  con- 

tested places,  but  every  thing  to 
be  left  as  it  was,  411. 
but  places  quitted,  &c.,  by  enemy 

may  be  possessed,  ib. 
subjects  inclined  to  revolt  not  to  be 

received  during  the  truce,  16. 
much  less  to  be  solicited  to  treason, 

Ik 
persons  or  effects  of  enemy  not  to 

be  seized  during  truce,  t'6. 
right  of  postliminium  during  a  truce,  ib. 
intercourse  allowed  during,  ib. 
of  persons   detained    by   insurmounta- 
ble difficulties  after  expiration  of, 
412. 
of  adding  particular  conditions  to  truces, 

ib. 
at  expiration  of,  war  renewed  without 

fresh  declaration,  ib. 
TRUTH, 

when  bound  to  speak  it  to  an  enemy, 
373. 


INDEX. 


653 


USUCAPTION.    See  PRESCRIPTION. 
what,  187,  and  note. 

VAGRANT.     See  COUNTRY. 
who  are  vagrants,  103. 
those  who  have  no  settlements,  ib. 
children  of,  have  therefore  no  country, 

ib. 

when  country  of  vagrant  that  of  child,  ib. 
as  where  vagrant  has  not  renounced  his 

natural  settlement,  ib. 

VOLUNTARY  LAW, 

what,  Ixiv.,  and  note. 

founded  on  a  presumed  consent,  Iriv. 

maxim  concerning  use  of,  Ixvi. 

VOLUNTEERS,  401.     See  WAR. 

WAR, 
Definition  of,  291. 

is  public  or  private,  ib. 

defensive  or  offensive,  293. 

right  of  making,  291. 

belongs   only  to  the  sovereign  power, 

292,  293. 

though  sometimes  otherwise,  292. 
right  of  kings  of  England  to  make,  292, 

293,  and  note. 

Of  the  instruments  of  war,  293. 

what  deemed  such,  ib. 

troops,  officers,  &c.,  ib. 

arms,  artillery,  &c.,  ib. 

right  of  levying  troops,  294. 

belongs  to  the  sovereign  power,  ib. 

is  one  of  the  prerogatives  of  majesty, 
ib. 

though  right  sometimes  limited,  ib. 

obligations  of  citizens  to  serve  and  de- 
fend the  state,  ib. 

of  the  enlistment  or  raising  of  troops, 
ib. 

of  the  exemptions  from  carrying  arms, 
295. 

who  exempt,  as  magistrates,  clergy,  &c., 
295,  296. 

of  soldiers'  pay  and  quarters,  296. 

of  hospitals  for  invalids,  ib. 

of  mercenary  soldiers,  297. 

who  are  such,  ib. 

possession  of,  how  far  lawful,  ib. 

what  observed  in  their  enlistment,  298. 

service  of,  voluntary,  ib. 

must  not  be  by  stratagem  or  force,  ib. 

of  enlistment  in  foreign  countries,  ib. 

permission  of  sovereign  requisite,  298. 

none  but  volunteers  to  be  enlisted,  i&. 

of  enticing  away  subjects,  ib. 

nature  of  crime  and  punishment,  ib. 

when  a  cause  for  declaring  war,  ib. 

of  the  obligation  of  soldiers,  299. 

to  take  oath  of  fidelity,  ib. 

are  not  to  desert  the  service,  ib. 

punishment  of  deserters,  ib. 


WAR,  (continued). 

of  solicitations  to  desert,  373. 
of  military  laws,  ib. 
necessity  of,  in  army,  ib. 
military  code  of,  what,  ib. 
of  military  discipline,  ib. 
importance  of,  considered,  ib. 
of  subordinate  powers  in  war,  ib, 
their  authority,  ib. 
extent  and  limit  thereof,  ib. 
promises  of,  how  far  binding  on  sove- 
reign, 300. 

when  binding  only  on  themselves,  i&. 
of  the  assumption  of  power  by,  ib. 
their  responsibility,  ib. 
how  they  bind  their  inferiors,  301. 
Of  the  just  causes  of  war,  ib. 
should  not  be  undertaken  without  very 

cogent  reasons,  ib. 
justificatory   reasons    and    motives    for 

making,  302. 
explanation  hereof,  ib. 
what  in  general  a  just  cause  of  war,  ib. 
what  unjust,  16. 
of  the  object  of  war,  ib. 
what  motives  requisite  in  undertaking 

war,  303. 

proper  motives,  what,  ib. 
vicious  motives,  what,  ib. 
of  war  undertaken  upon  just  grounds, 

though  motives  vicious,  ib. 
pretexts,  what,  304. 
of  war  undertaken  merely  for  advantage. 

* 
of  nations  making  war  without  reason 

or  apparent  motives,  305. 
are  considered  enemies  to  mankind,  ib. 
right  of  nations  to  punish  them,  ib. 
how  defensive  war  is  just  or  unjust,  ib. 
nation  has  no  right  to  defend  an  unjust 

war,  305,  307. 
her  duty  under  such  circumstances, 

305,  313. 
how  defence  may  become  just,  305,  313, 

316.  > 

offensive  war,  how  far  just  in  an  evident 

cause,  305. 
requisites  to  be  considered,  306. 

1.  a  right  to  demand  something  of 

another  nation,  306,  315. 

2.  the  inability  to  obtain  it  otherwise 

than  by  force  of  arms,  306,  315, 
320. 

in  a  doubtful  cause,  306. 
when  to  be  resorted  to,  ib. 
war  cannot  be  just  on  both  sides,  i6. 
though  sometimes  reputed  lawful,  306, 

320. 

of  war  undertaken  to  punish  a  nation,  307. 
should  be  founded  on  right  and  necessity, 

ib. 

duty  of  nation  at  fault,  ib. 
SB* 


654 


INDEX. 


WAR  (continued). 

aggrandizement  of  a  neighbouring  power, 
308. 

when  no  right  to  make  war,  ib. 

when  appearance  of  danger  gives  the 
right,  309. 

when  other  nations  may  check  aggrand- 
izement of  a  state,  310,  311. 

other  allowable  means  of  defence  against 
a  formidable  power,  311. 

political  equilibrium,  what,  311,  312. 

ways  of  maintaining  it,  312. 

how  he  who  destroys  it  may  be  re- 
strained, 312,  313. 

behaviour  allowable  towards  a  neighbour 

preparing  for  war,  313. 
Of  the  declaration  of  war,  315. 

of  the  necessity  thereof,  ib, 

what  it  should  contain,  ib. 

is  simple  or  conditional,  316. 

right  to  make,  ceases  on  offer  of  equi- 
table conditions,  ib, 

formalities  of,  ib. 

publication  of,  ib. 

necessity  hereof,  ib. 

defensive  war  requires  no  declaration,  ib. 

when  may  be  omitted  in  an  offensive 
war,  i&. 

or  against  enemies'  associates,  331. 

not  to  be  omitted  by  way  of  retaliation, 
317. 

unnecessary  at  expiration  of  a  truce, 
412. 

should  be  made  where   truce  of  long 

duration,  ib. 
Time  of  declaration  of  war,  317. 

need  not  be  till  army  has  reached  the 
frontiers,  ib. 

or  has  entered  the  enemy's  territories, 
ib. 

must  precede  acts  of  hostility,  ib. 
Duty  of  inhabitants  on  entry  of  foreign  army 
before  declaration,  ib. 

commencement  of  hostilities,  ib. 

conduct  to  be  pursued  towards  subjects 
of  enemy  in  country  at  time  of 
declaration,  318. 

freedom  of  persons  and  property,  ib. 

time  allowed  for  departure,  ib. 

extension  of  that  time,  when,  ib. 

when  to  be  treated  as  enemies,  ib. 
Publication  of  the  war  and  manifestoes,  ib. 

necessity  for,  among  neutrals,  ib. 

how  published,  319. 

manifestoes,  what,  ib. 

what  they  should  contain,  ib. 

decorum  and  moderation  to  be  observed 

in,  ib. 
Of  lawful  war  in  due  form,  ib. 

requisites  of,  ib. 

by  whom  to  be  made,  ib. 

also  termed  a  regular  war,  320. 


WAR  (continued). 

how  far  noticed  in  courts  of  justice,  320, 

in  note. 

distinctions    between    lawful    and    un- 
lawful war,  320. 

between  unlawful  and  informal,  ib. 
grounds  of  distinction,  320,  321. 
Of  the  enemy,  and  things  belonging  to  him, 

ib.     See  ENEMY. 

Of  neutrality,  332.     See  NEUTRALITY. 
Of  the  rights  of  nations  in  war,  346,  and 

note. 

general  principles  of,  346. 
difference  between  what  may  be  done 

of  right,  and  what  merely  allowed, 

346. 
the    right    to    weaken    an    enemy  by 

every  justifiable  method,  347,  353, 

364. 
the    right    over    the    enemy's    person, 

347. 

origin  and  limitation  of  this  right,  ib. 
of  giving  quarter,  and  the  offer  to  ca- 
pitulate, 348. 
enemy  not  to  be  killed  after  ceasing  to 

resist,  348,  350,  354. 
case  when  quarter  may  be  refused,  348, 

361. 
enemy  violating  the  laws  of  war,  348, 

350,  354,  361. 
of  the  governor  of  a  town  making  an 

obstinate  defence,  349,  350. 
Reprisals,  what,  348.     See  REPRISAL. 
a  system  of  retaliation,  348. 
examples  of,  349,  and  note, 
what  prisoners  not  to  be  the  subject  of, 

349,  350. 

Fugitives  and  deserters,  351. 
when  may  be  put  to  death,  ib. 
of  the  clemency  to  be  shown  to  them, 

ib. 

capitulation  with  respect  to,  ib. 
Women,  children,  aged,  and  the  sick,  ib. 
not  to  be  put  to  death,  ib, 

unless  guilty  of  acts  of  hostility,  352. 
Clergymen,  men  of  letters,  l;c.,  ib. 
also  exempted  from  death,  ib. 
when  not,  ib. 
peasants  and  those  not  carrying  arms, 

352,  353. 

likewise  exempt,  ib. 
their  freedom  in  general,  16. 
when  may  have  restraints  imposed  on 

them,  353. 

Of  prisoners  of  tear,  ib.     See  PIV>ONEB. 
right  of  making,  ib. 
its  object,  ib. 
not    to    be    put    to    death,    348,    354, 

355. 

treatment  of,  354,  and  note, 
of  prisoners  who  cannot  be  fed,  355. 
of  condemning  them  to  slavery,  356. 


INDEX. 


655 


WAR  (continued). 

exchange  and  ransom  of,  357.     See  RAN- 
SOM. 

object  of,  357. 
when  it  takes  place,  ib. 
how  regulated  in  general,  ib. 
when  exchange  may  be  refused,  ib. 
of  providing  liberty  of,  in  treaty,  ib. 
right  of  nation  to  prohibit  ransom  of, 

357,  358. 
of  assassinating  and  poisoning  of,  358  to 

360. 

meaning  of  assassination,  359. 
is  contrary  to  the  law  of  nature,  360, 

361. 
guilt  of  sovereign  resorting  thereto, 

361. 

how  punished,  ib. 
use  of  poison  not  to  be  adopted  by 

way  of  reprisal,  360. 

Of  the  right  of  war  with  regard  to  things 
belonging   to   the   enemy,   364.     See 
ENEMY. 
Of  the  sovereign  who  wages  an  unjust  war, 

378. 

an  unjust  war  gives  no  right,  ib. 
guilt  of  him  who  undertakes  it,  378, 379. 
his  obligations,  379. 
Of  the  effects  of  a  regular  war,  381. 
is  bound  to  make  reparation,  ib. 
nations  not  rigidly  to  enforce  the  law  of 

nature  against  each  other,  ib. 
should   observe   the   voluntary  law   of, 

382. 

reason  for  this,  ib. 
regular  war,  its  effects,  ib. 
whatever  permitted  to  one  party,  is  so 

to  the  other,  382,  383. 
effect  of  the  voluntary  law  in  an  unjust 

war,  383. 

Of  acquisitions  by  war,  384. 
war,  when  a  lawful  mode  ofacquisition,t'6. 
conditions  necessary  to  render  it  just, 

384,  385. 
every  acquisition  in  regular,  valid,  385. 

and  this  though  war  unjust,  ib. 
exception  in  case  of  war  destitute  of  any 

plausible  pretext,  385. 
acquisition  of  movable  property,  385,  in 

note. 

of  maritime  captures,  ib. 
title  to,  when  complete,  ib. 
law  as  to,  in  England,  ib. 
acquisition  of  immovables  on  conquest, 

386. 

to  whom  they  belong,  ib. 
when  title  thereto  complete,  ib. 
how  to  transfer  them  validly,  387,  395. 
conditions  on  which  a  conquered  town 

is  acquired,  387. 

such  rights  only  acquired  as  belonged 
to  the  conquered  sovereign,  & 


WAR  (continued). 

lands  of  private  persons,  388. 

formerly  subject  to  the  right  of  conquest, 

ib. 

such  right  now  confined  to  public  pro- 
perty, ib. 

conquest  of  the  whole  state,  ib. 
treatment  of  the  conquered  state,  388, 

&c.,  and  note, 
to  whom   the   conquest  belongs,   391, 

365,  and  note. 

the  nation  entitled  thereto,  391. 
nature  of  the  sovereign's  right  thereto, 

391,  365,  and  note, 
of  liberating  a  people  whom  the  enemy 

have  unjustly  conquered,  391. 
when  under  an  obligation  to  do  so,  339, 

and  note. 
Of  the  right  of  postliminium,  392.     See  Jus 

POSTLIMINIUM. 

Of  the  rights  of  private  persons  in  war,  399. 

subjects  cannot  commit  hostilities  with- 
out the  sovereign's  order,  ib. 

nature  of  that  order,  ib. 

necessity  for,  and  why  adopted,  399, 
400. 

precise  meaning  of  order,  400,  and 
note. 

how  interpreted,  400. 

what  private  persons  may  undertake, 
presuming  on  the  sovereign's  will, 
ib. 

of  privateers,  ib. 

nature  of  their  rights,  400,  401. 

of  volunteers,  401. 

their  treatment,  ib. 

what  soldiers  and  subalterns  may  do, 
401,  402. 

obligation  of  state  to  indemnify  subjects 
for  damages  sustained  in  war,  402, 
403,  and  note. 

distinction  herein,  ib. 

duty  of  state  in  this  respect,  403,  and 

note. 

Of  conventions  made  during  war,  404.     See 
TKUCE. 

of  truce  and  suspension  of  arms,  ib, 

distinction  between,  ib. 

does  not  terminate  the  war,  ib. 

a  truce  is  either  partial  or  general,  ib. 

of  a  general  truce  for  many  years,  ib. 

how  concluded,  16. 

sovereign's  faith  engaged  in,  406. 

when  truce  begins  to  be  obligatory, 
ib. 

publication  of,  i6. 

subjects  contravening  of,  ib. 

truce  not  .thereby  broken,  ib. 

punishment  of  delinquents,  406,  407. 

violation  of,  407. 

its  dissolution  by  breach  of  one  of  con- 
tracting parties,  ib. 


656 


INDEX. 


WAR  (continued). 

stipulation  of  penalty  against  infractor 
of,  407. 

time  of  the  truce,  ib. 

necessity  of  specifying,  407,  408. 

how  construed  in  the  absence  of  such 
specification,  408. 

general  effects  of  a  truce,  ib. 

what,  or  not  allowed  during  continu- 
ance of  it,  ib. 

rules  respecting,  409.     See  TRUCE. 
Of  capitulations,  412. 

by  whom  to  be  concluded,  412,413. 

clauses  thereof,  413. 

necessity  for  their  observance,  414. 

promises  made  to  the  enemy  by  in- 
dividuals are  binding,  414,  371, 
372. 

instances,  415. 

duty  of  sovereign  to  see  them  fulfilled, 
414. 

as  to  contracts  in  favour  of  alien  ene- 
mies, 414,  note. 

as  to  promises  of  ransom,  414.  See 
RANSOM. 


WAR  (continued). 

of  conventions  relating  to  ransom,  419, 

420.     See  RANSOM. 
WAYS,  43.     See  PUBLIC  WATS. 

WHALE  FISHERY. 

customary  law  respecting,  Ixiv.  note. 
WILLS,' 

validity  of,  how  decided,  167. 

how  construed  in  England,  167,  note. 

prisoner  of  war  may  make,  398. 

WORSHIP.    See  RELIGION. 
what,  46. 

is  either  public  or  private,  61. 
of  the  establishment  of,  56,  59,  60. 
how  destroyed,  61. 
of  attendance  at  public  worship,  ib. 
how  far  enjoined  by  religion,  ib. 

WRECKS, 

of  the  right  thereto,  130,  and  note. 

in  what  cases  allowed,  ib, 

only   where   owner   cannot    be   found, 

ib. 
to  whom  they  belong,  ib. 


THE  END. 


E.   B.   HEARS,    STEREOTYPED 


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